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The following abstract was prepared by the Federal Constitutional Court and submitted for publication to the CODICES database maintained by the Venice Commission. Abstracts published by the Venice Commission summarise the facts of the case and key legal considerations of the decision. For further information, please consult the CODICES database.
Please cite the abstract as follows:
Abstract of the German Federal Constitutional Court’s Order of 18 December 2017, 2 BvR 2259/17 [CODICES]
When referring to the original decision, please follow the suggested form of citation for decisions of the Court.
Abstract

First Chamber of the Second Senate

Order of 18 December 2017

2 BvR 2259/17


Headnotes (non-official):

1. Courts violate the fundamental right to effective legal protection guaranteed under Article 19.4 first sentence of the Basic Law if they fail to investigate the risk of torture or inhuman detention conditions in case of deportation even though the existence of such risk is seriously indicated.

2. Constitutional guarantees require that the public authorities and courts investigate, prior to executing a deportation, the relevant conditions in the receiving state and, if necessary, obtain adequate assurances from the responsible foreign authorities in order to rule out the risk of torture and inhuman treatment.



Summary:

I.

The proceedings concerned the constitutional complaint lodged by a Turkish citizen convicted of supporting a terrorist organisation, challenging his expulsion from Germany and impending deportation to Turkey.

The applicant was born and raised in Germany. In 2015, the Berlin Higher Regional Court convicted the applicant for supporting a terrorist organisation abroad and handed down an aggregated prison sentence of three years and six months on the grounds that he had joined Salafist groups and had made significant monetary and in-kind contributions to the terrorist organisation Junud al-Sham in Syria. In June 2016, the competent immigration authority ordered the applicant’s expulsion from the Federal Republic of Germany and notified the applicant of his impending deportation to Turkey. The Administrative Court rejected his application seeking interim relief; his complaint to the Higher Administrative Court did not meet with success.

The applicant furthermore applied for asylum in August 2017. His application was rejected, however, as manifestly unfounded. The applicant challenged this decision in interim relief proceedings, claiming that Turkish authorities had opened criminal proceedings against him for charges of supporting Islamist terrorism, and that he were at risk of torture. In substantiating his application for interim relief, the applicant furnished a written submission of amnesty international, which stated that in late July 2017 the German section of amnesty international had received information from the father of a detained Turkish terror suspect according to which his son as well as fellow prisoners were subjected to severe beatings and torture; the prisoners were refused any kind of medical assistance and held in cells filled with human faeces. By Order of 21 September 2017, the Administrative Court rejected the application for interim relief. In its reasoning, the Administrative Court concurred with the conclusions reached by the Higher Administrative Court in the proceedings concerning the expulsion order, namely that only members of the Kurdish PKK or the Gülen movement were at risk of torture; conversely, there were no indications suggesting a considerable risk of torture or human rights violations in the case of the applicant.

The applicant lodged a constitutional complaint (Article 93.1 no. 4a of the Basic Law in conjunction with § 13 no. 8a and §§ 90 et seq. of the Federal Constitutional Court Act) directed against the order of the immigration authority and the court decisions in both the expulsion proceedings and the asylum proceedings, claiming a violation of Article 2.2 first sentence in conjunction with Article 1.1, Article 16a.1, Article 19.4, Article 3.1, Article 2.1, Article 6.1, Article 6.2, Article 101 second sentence and Article 103.1 of the Basic Law. He also applied for a preliminary injunction pursuant to § 32.1 of the Federal Constitutional Court Act.

II.

By Order of 21 September 2017, the Federal Constitutional Court issued a preliminary injunction enjoining the competent immigration authority to refrain from deporting the applicant for the duration of the constitutional complaint proceedings or, latest, until 30 November 2017.

To the extent that the constitutional complaint was directed against the order of the Administrative Court in the asylum proceedings, the First Chamber of the Second Senate of the Federal Constitutional Court admitted the constitutional complaint for decision and granted the relief sought; the matter was remanded to the Administrative Court for further factual investigations.

The decision was based on the following considerations:

The challenged decision of the Administrative Court violates the applicant’s fundamental right under Article 19.4 first sentence in conjunction with Article 2.2 first sentence of the Basic Law.

The principle of effective legal protection under Article 19.4 first sentence of the Basic Law is not limited to the requirement that recourse to the courts be available against any act of executive authorities potentially violating individual rights; rather, courts are also called upon to ensure that the affected rights can be effectively enjoyed in practice. The standard of what is considered effective legal protection is determined, inter alia, based on the substantive content of the right whose violation is asserted, in this case human dignity and the right to life and physical integrity in conjunction with the guarantees of Article 3 ECHR as interpreted in light of the case-law of the European Court of Human Rights. The standards applied to the investigation of facts under the relevant procedural law must give consideration to the high value attached to these rights. In cases where the risk of torture or inhuman detention conditions is at issue, the procedural duty to investigate the facts of the case (§ 86.1 of the Code of Administrative Court Procedure) is of constitutional importance. In the event that substantial indications point to a risk of torture, it is required under the Constitution and the European Convention on Human Rights that the competent authorities and courts investigate, prior to the deportation of the person concerned, the relevant conditions in the receiving state and, if necessary, obtain adequate assurances from the responsible foreign authorities that rule out the risk that the person concerned were treated in a manner violating Article 3 ECHR.

The challenged decisions do not satisfy these standards. The Administrative Court found that there were no indications for a considerable risk of torture or inhuman detention conditions in the event of the applicant’s deportation to Turkey given that only Kurdish activists and supporters of the Gülen movement – in contrast to supporters of Islamist terrorism – were at risk of treatment contrary to human rights. This reasoning, however, fails to meet constitutional requirements. In light of the written submission authored by amnesty international and furnished by the applicant in the relevant proceedings and, most notably, in light of general assessments concerning the political situation in Turkey of which it can be assumed that they were known to the court, there was reason for the Administrative Court to conduct further investigations into the facts of the case or to obtain assurances from the Turkish authorities regarding the envisaged treatment of the applicant. For there actually were substantial indications for the existence of a torture risk, including in cases of persons suspected of supporting Islamist terrorism and thus also in the case of the applicant. It would have been incumbent upon the court to review these indications. Not least in consideration of the higher courts’ case-law concerning detention conditions in Turkey, it was untenable for the Administrative Court to assume, without further reason, that the applicant would not be at risk of human rights violations following his deportation. In view of the fact that a violation of the duty to sufficiently investigate, deriving from Article 19.4 first sentence of the Basic Law, has thus already been established, a decision on whether persons affiliated with Islamist terrorist organisations are generally at risk of torture in Turkey was not required in the present constitutional complaint proceedings.

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Additional Information

ECLI:DE:BVerfG:2017:rk20171218.2bvr225917

Please note that only the German versions are authoritative.