Parliamentary right to be informed on support operations of the Federal Police only applies to the Federation’s sphere of responsibility

Press Release No. 37/2015 of 02 June 2015

Judgment of 2 June 2015
2 BvE 7/11

In a judgment pronounced today, the Second Senate of the Federal Constitutional Court has clarified the constitutional standards according to which the Federal Government is obliged to answer parliamentary questions on support operations of the Federal Police. The right to be informed is limited to circumstances pertaining to the Federation’s sphere of responsibility. This includes in particular the decision in how far the Federal Police complies with a Land’s [state] request for support. However, the Federal Government is under no duty to comment on the operational concept of the Land police or on its implementation. Nevertheless, there is an obligation to answer parliamentary questions on the conduct of individual Federal Police officers that is relevant under disciplinary law, insofar as they state the relevant events establishing probable cause thereof in an adequately precise manner. According to these standards, the application submitted by the parliamentary group DIE LINKE in the Organstreit proceedings is partly successful.

Facts of the Case:

The Organstreit proceedings concern several replies by the Federal Government to minor interpellations of the parliamentary group DIE LINKE in the German Bundestag. They all refer to support operations of the Federal Police on behalf of various Laender [states]. For the details of the facts of the case please see press release No. 111/2014 of 5 December 2014. [Translator’s note: This press release is not available in English.]

Key Considerations of the Senate:

1. Art. 38 sec. 1 sentence 2 and Art. 20 sec. 2 sentence 2 of the Basic Law (Grundgesetz – GG) contain the German Bundestag’s right to question the Federal Government and the right to be informed by it. The Federal Government’s replies are meant to quickly and reliably provide the Bundestag and the individual members of Parliament with the necessary information. Parliamentary control of the government and the executive branch puts into practice the principle of separation of powers and, at the same time, is an emanation of the government’s accountability vis-à-vis the Parliament that follows from the principle of democracy.

2. Art. 83 et seq. GG exhaustively regulate the administrative competences of the Federation and of the Laender. In view of this, deploying Federal Police staff for the purpose of exercising responsibilities of a Land is only permissible if based on an explicit constitutional authorisation. Such a deployment is provided for in Art. 35 sec. 2 sentence 1 GG for cases of particular importance and under strict conditions. Routine deployments of Federal Police staff to exercise Laender responsibilities going beyond this possibility would not be permissible. The same is true with regard to extending the Federal Police’s mandate from the current limited one to create a general federal police force that competes with the Land police forces.

3. Accordingly, with regard to support operations under Art. 35 sec. 2 sentence 1 GG the German Bundestag’s right to question the Federal Government and to be informed by it that also applies to the members of Parliament and the parliamentary groups only refers to circumstances that fall within the Federation’s sphere of responsibility as following from the distribution of competences under the Basic Law and the more detailed provisions contained in the Federal Police Act (Bundespolizeigesetz – BPolG).

a) The Federal Government is under an obligation to reply to parliamentary questions about the federal decision on a Land’s request for support from the Federal Police. In this context, it may also have to inform about facts that pertain to the requesting Land’s sphere of responsibility but that constitute the basis for the decision on the request. This includes the essential features of the operational mandate as described in the request, the number of the federal police officers requested, or special requirements as to the type of personnel or equipment needed.

In addition, the Federal Government has to answer questions referring to those circumstances of a support operation for which a federal authority is responsible due to its function as employer of the respective civil servants. This is the case with regard to questions about training and equipment of the respective Federal Police officers or about disciplinary proceedings that were initiated against individual officers after a support operation because of their conduct during that operation. This also includes criminal proceedings if they are known to the employer.

This applies accordingly to other aspects of the support operation that fall within the federal sphere of responsibility, i.e. questions on additional costs resulting from the operation.

b) However, in principle, the Federal Government is under no obligation to comment on the concept, the preparation, planning and implementation of the whole operation. According to Art. 30, 70, 83 GG, the Laender have the competence and the responsibility for executing the task of countering threats to public safety and order through police measures. When the Federation supports the Laender by providing Federal Police units, it does not assume responsibility for commanding the whole operation, neither de facto, nor legally. Whether this support has to be legally qualified as placing the forces at the disposal of the Land to act as a Land organ (Organleihe) or as administrative assistance (Amtshilfe) is without relevance for the question of responsibility.

Pursuant to § 11 sec. 2 BPolG, the support provided by the Federal Police to a Land in the cases at issue here is governed by the respective Land law; the Federal Police is subject to the Land’s instructions and orders. As a consequence, the Land bears the responsibility for the conduct of Federal Police staff that ensues from the instructions of Land civil servants. In these cases, the state conduct is democratically legitimated via the Land government’s accountability vis-à-vis the Land parliament. The specific composition of the parliament is not relevant in this context. The fact that the political party DIE LINKE is not represented by parliamentary groups in all Laender parliaments and that a Bundestag parliamentary group cannot force parliamentary groups in Laender parliaments to raise parliamentary questions does not constitute a break of the chain of legitimation or control, but is a consequence of the federal state architecture.

However, the Federation bears the responsibility under public employment law for illegal conduct of civil servants it deploys – irrespective of the Land’s authority to issue orders and instructions. Therefore, parliamentary questions about illegal conduct that individual Federal Police officers engaged in in the context of support missions and that is relevant under disciplinary law have to be answered. However, the questions have to make it sufficiently clear that there is probable cause to believe in illegal conduct of individual Federal Police officers and they should mention the relevant facts. In such a case, the Federal Government is under a duty to inform about the instructions issued in the situation, whether the Federal Police officers complied with the instructions, and, if they deviated from those instructions, which reasons existed for that, and which action was taken after the operation was over. This information is necessary to reveal violations of official duties, in which case the parliamentary interest in information attains a particular weight.

c) The Federal Government is under no duty to form an opinion on events within a Land‘s sphere of responsibility and to state this opinion upon parliamentary question. If, however, such an opinion has actually been formed within the Federal Government, the result of this process has to be disclosed upon request. This also applies to the Federal Ministry of the Interior’s evaluation of an operation or, accordingly, to the evaluation by its subordinate Federal Police Headquarters. If the Federation and the Land concerned evaluate the operation together, the evaluation results – i.e. a joint final report – are to be forwarded unless there are reasons for secrecy. If, however, civil servants of the Federation merely take part in an evaluation exercise under the sole direction of the respective Land, the Federal Government’s or its subordinate authorities’ sphere of responsibility is not concerned; thus there is no duty to reply.

d) If the Federal Government refuses to answer a parliamentary question about a Federal Police support operation, in general, it has to state reasons. Referring to the Land’s competence is a sufficient reason if the answer is refused due to a lack of own responsibility. More detailed reasons shall be given if the Federal Government intends to refuse disclosure of information on events within their sphere of responsibility, i.e. because an event pertains to the core sphere of autonomous executive decision-making (Kernbereich exekutiver Eigenverantwortung) or because, in rare exceptional cases, the welfare of the state prohibits disclosure.

4. In view of these standards, when replying to the minor interpellations at issue here, the respondent partly violated the applicant’s rights under Art. 38 sec. 1 sentence 2 and Art. 20 sec. 2 sentence 2 GG. The replies to two of about 100 questions were inadequate.

a) The replies contained in Bundestag Document (Bundestags-Drucksache – BTDrucks) 17/5270 of 25 March 2011 and Bundestag Document 17/5737 of 6 May 2011 are not objectionable under constitutional law. The respondent’s preliminary remark that operational scenarios in the context of demonstrations and assemblies pertain to the sphere of the Laender shows that the respondent considered itself to be under a duty to reply to questions concerning its own sphere of responsibility, but only to such questions. In its replies, the Federal Government has correctly determined the spheres of responsibility of the Federation and the Free State of Saxony.

b) However, the replies contained in Bundestag Document 17/6022 of 31 May 2011 concerning the operations by the Federal Police in Berlin, Heilbronn and elsewhere in part curtail the applicant’s right to question and thereby violate the respondent’s duty to reply. The respondent was under an obligation to reply to the questions no. 10 letters e) and g) of this minor interpellation.

In the minor interpellation’s preliminary remark, the applicant stated that, according to press reports, in particular at Kottbusser Tor in Berlin, where mainly Federal Police staff were deployed, pepper-spray and irritant gas were used extensively and – according to the applicant’s assessment – in a disproportionate way. Thereby, the applicant stated facts that established probable cause that individual Federal Police officers engaged in conduct that was relevant under disciplinary law. Therefore, the respondent was under a duty to verify, via its subordinate authorities, whether there had been indeed such conduct by individual Federal Police officers. The results of this investigation should have been disclosed in the reply. In the case that there had been such a Federal Police measure, the respondent should have stated whether the measure was based upon an instruction by the Land operational command, and, if this was not the case, why the measure had been taken without such instruction.

Insofar as the interpellation asked for an evaluation of the challenged use of pepper spray, in principle, the respondent was not obliged to conduct such an evaluation and its reply must be understood to mean that the Federal Government had not formed such an opinion at the time of the interpellation. However, the question has to be viewed in the context of the alleged illegal conduct by Federal Police staff. In the case that the measures were taken by Federal Police staff, the disciplinary superiors would have had to evaluate the situation anyway. Therefore, the respondent was under an obligation to comment on the allegation of illegal conduct by Federal Police staff that was raised in the question.