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|Please note that only the German version of this decision is authoritative. Further information can be found here.|
|This is an abstract from the CODICES database maintained by the Venice Commission. Please cite as follows: Abstract of the German Federal Constitutional Court’s Order of 24 July 2017, 2 BvR 1487/17.|
First Chamber of the Second Senate
Order of 24 July 2017
2 BvR 1487/17
Headnotes (not official):
1. The competence of the Mediation Committee to submit amendment proposals to a draft law is limited to such regulatory matters that have already been introduced into the legislative process, at the very latest before the final reading in Parliament.
2. The use of the term “terrorism” as a legal term to define the constituent elements of a statutory provision does not violate the principle of legal specificity, as long as the remaining definitional difficulties and differing legal views concerning the interpretation and application in practice can be addressed by means of recognised legal methodology, most notably in the case-law of the regular courts.
3. In principle, it is permissible to rule out concerns that a foreign citizen would be at risk of inhuman and degrading treatment in violation of Article 1.1 of the Basic Law and Article 3 ECHR in the event of deportation by way of obtaining adequate assurances from the authorities of the receiving state. This also applies to cases concerning the deportation of “dangerous suspects”.
4. A mere general assurance, according to which the person affected by the deportation order “would not be at risk of torture or inhuman or degrading treatment or punishment”, does not suffice to satisfy the requirements arising under Article 1.1 of the Basic Law and Article 3 ECHR. In this respect, assurances obtained from the receiving state must include specific guarantees that take into account the circumstances of the individual case.
The applicant is an Algerian national who entered the territory of the Federal Republic of Germany for the first time in early 2003. On March 2017, the competent authority of the Free Hanseatic City of Bremen ordered his deportation to Algeria pursuant to § 58a of the Act on the Residence, Economic Activity and Integration of Foreigners in the Federal Territory of 2004 (Residence Act; hereinafter, “the Act”) and issued a permanent ban on entry and residence against the applicant pursuant to § 11.5 of the Act. The reasoning of the deportation notice stated that the applicant posed a terrorist threat.
The action brought by the applicant against the deportation order was dismissed by the Federal Administrative Court, subject to the reservation that a deportation would only be permissible upon obtaining an assurance from Algerian government authorities that the applicant would not be at risk of suffering human rights violations in Algeria.
With his constitutional complaint, the applicant primarily challenges the formal and substantive constitutionality of § 58a of the Act. The challenged provisions govern so-called foreign “dangerous suspects” (Gefährder) residing in Germany, i.e. persons who constitute a special danger to the security of the Federal Republic of Germany or a terrorist threat, and allows for their deportation in order to avert such threats. The applicant contends that the provision was inserted in the relevant draft by the Mediation Committee (Vermittlungsausschuss) without first having been tabled for parliamentary debate; for this reason, the applicant claims that the enactment of the challenged provision does not meet formal constitutional requirements.
The First Chamber of the Second Senate of the Federal Constitutional Court did not admit the constitutional complaint for decision, on the basis that it was unfounded. The Chamber also held that § 58a of the Act is formally and substantively compatible with the Basic Law.
The Court’s decision is based on the following considerations:
There are no objections to the formal constitutionality of the challenged provision, as the Mediation Committee did not exceed its competences. The Committee’s competences are limited to mediation proposals aimed at reconciling such regulatory options that have already been the subject of parliamentary debate or, at the very least, have already been ascertainably introduced in the relevant legislative process. In contrast, the Mediation Committee does not have the right to initiate legislation (Article 76.1 of the Basic Law); amendments of draft legislation proposed by the Committee may neither curtail the legislative process nor undermine the visibility of regulatory matters in terms of public attention.
These constitutional requirements are satisfied with regard to the challenged provision. In the course of the legislative process in question, demands for the effective protection against terrorist threats resulted in proposals that included, inter alia, suggestions to introduce lifetime entry bans, expand grounds for deportation, and reduce statutory prohibitions on deportation. All these amendment proposals had in common that the relevant measures were to be applicable to cases of suspected terrorism. The fact that the relevant amendment proposals were initially rejected before the Parliamentary Committee of the Interior and subsequently not reflected in the first draft submitted to Parliament, does not merit a different conclusion. Specifically, this does not change the fact that the basic elements of the compromise put forward by the Mediation Committee are sufficiently rooted in the legislative process. Moreover, the proposed amendments to the draft law were adequately introduced to parliamentary debate in terms of both scope and content.
Moreover, § 58a of the Act satisfies the substantive constitutional requirements of legal clarity and specificity. In this regard, the Basic Law requires that any legal authorisation of the executive branch to issue administrative decisions be sufficiently specific and limited in terms of content, purpose and scope. Persons affected by the relevant law must be able to assess the legal situation and to align their conduct accordingly. It must be possible for them to ascertain with reasonable efforts whether the necessary factual elements of the law are fulfilled with regard to the legal consequences set out under the provision in question.
Based on these standards, § 58a of the Act does not raise constitutional objections. The provision requires a special danger to the security of the Federal Republic of Germany or a terrorist threat, and thus relies on constituent elements that are sufficiently determinable. In addition, the Federal Administrative Court has specified these constituent elements in its case-law and has also clarified relevant distinctions between § 58a of the Act and other general grounds for deportation. In particular, the Federal Administrative Court referred to the specific threats stemming from terrorist offences which could be realised any time and do not require significant preparations.
The challenged provision also satisfies the principle of proportionality. The Basic Law guarantees that public authorities may only interfere with fundamental rights if such interference is proportionate when it comes to achieving a legitimate aim. § 58a of the Act grants the administrative authorities discretion regarding decisions on the deportations of “dangerous suspects”. However, the principle of proportionality limits this discretion, and the exercise of such discretion by the authorities is subject to full judicial review by the regular courts. In this respect, the standards developed by the Federal Administrative Court for the application of § 58a of the Act reflect the relevant requirements arising from fundamental rights and remain within the regular courts’ margin of assessment.
The application of the challenged provision in the applicant’s case also does not violate his fundamental rights. In particular, the Federal Administrative Court did not base its assessment that the applicant poses a terrorist threat solely on the applicant’s ideological conviction. Rather, the Federal Administrative Court considered the applicant’s conviction merely as one of several aspects contributing to the applicant’s potential dangerousness. Moreover, there are no constitutional objections to the Federal Administrative Court’s evaluation of the comprehensive evidence submitted in the initial proceedings, leading to the conclusion that the applicant shows signs of a significantly increased willingness to resort to violence and terrorist methods in order to achieve his religiously motivated aims.
Finally, the decision of the Federal Administrative Court is not objectionable under constitutional law insofar as it made the deportation of the applicant contingent upon an assurance from the Algerian authorities, to be obtained prior to the applicant’s transfer. The specific requirements arising under constitutional law with regard to such assurances largely depend on the prevailing conditions in the country of destination as well as the circumstances of the individual case. In the applicant’s case, it is required under constitutional law that the relevant assurances include specific guarantees that allow for a (potential) review of the conditions of detention in the event that the applicant is incarcerated and ensure, in particular, that the applicant will have unobstructed access to his lawyer. In addition, the applicant must be given the opportunity to submit a statement concerning the assurances obtained and, if appropriate, seek legal protection prior to his deportation.