Federal Constitutional Court - Press office -
Press release no. 35/2010 of 1 June 2010
Order of 4 May 2010 – 2 BvE 5/07 –
Application in Organstreit proceedings relating to Bundeswehr deployment
in Heiligendamm rejected
From 6 to 8 June 2007, the 33rd meeting of the World Economic Summit of
the Group of Eight (G8) took place under German Presidency in
Heiligendamm in the Land (state) Mecklenburg-Western Pomerania under the
motto “Growth and Responsibility”. In the security authorities’
assessment, both demonstrations involving violence and attacks from the
sphere of Islamist terrorism were likely to occur. In the period leading
up to the summit, the Land Mecklenburg-Western Pomerania and the
Federation came to the joint assessment that the task of ensuring
security on the occasion of the summit would be too much for
Mecklenburg-Western Pomerania without assistance from the Federation and
other Länder (states).
By letter of May 2006, the Federal Minister of Defence had initially, in
principle, promised the Minister of the Interior of the Land
Mecklenburg-Western Pomerania technical and logistical support.
Subsequently, he approved a large number of specifically requested
measures of support. The security authorities expected, on the basis of
police predictions, that opponents of the G8 summit would try to erect
blockades on the roads leading to Heiligendamm and Rostock-Laage
Airport, create earth depots for tools and blockade equipment and tamper
with streets by, for example, underwashing or undermining. Such ground
alterations were to be detected from the air with the aid of the
reconnaissance technology on board Tornado aircraft. From 3 May to 5
June 2007, a total of seven missions were flown using Tornado aircraft.
During them, optical images were recorded, which, according to the
respondent (the Federal Government), are not suitable for identifying
persons. On one flight, the aircraft flew for a short time below the
minimum flight altitude of 500 feet over the inhabited demonstrators’
camp at Reddelich. On none of the flights were the Tornados’ cannons
loaded with ammunition.
In addition, nine self-contained Fennek reconnaissance systems were
brought into operation, each consisting of an armoured reconnaissance
vehicle for ground reconnaissance. These were used for the surveillance
of premises and streets and of the flight approach routes of summit
participants and had the task of observing and reporting findings to the
police.
To ensure airspace security, moreover, three AWACS aircraft, as part of
the NATO formation, were used, which provided an air situation picture.
Moreover, before and during the G8 summit, the air force (Luftwaffe)
kept four Eurofighter aircraft and eight Phantom aircraft ready, which
performed approximately 23 flying hours.
Furthermore, in order to ensure emergency medical provision during the
summit, the Bundeswehr maintained a mobile medical rescue centre in Bad
Doberan. For that purpose, it was assigned the right to exercise
proprietary powers for some parts of the Land and buildings belonging to
Bad Doberan Hospital. Military police were deployed to safeguard the
activity of the medical corps soldiers and to exercise proprietary
powers.
The parliamentary group BÜNDNIS 90/DIE GRÜNEN in the German Bundestag
(applicant) made an application in Organstreit proceedings (proceedings
relating to a dispute between supreme constitutional bodies) for a
declaration that the Federal Government (respondent) violated the rights
of the German Bundestag under Article 87a.2 of the Basic Law
(Grundgesetz – GG) by failing, prior to the deployment of the Bundeswehr
on the occasion of the G8 summit, to bring the matter before the German
Bundestag.
The Second Senate of the Federal Constitutional Court rejected the
application as manifestly unfounded. It held that the mere consent of
the German Bundestag would not have been able to eliminate a possible
unconstitutionality of the employment of the Bundeswehr. Furthermore it
is not apparent from the Federal Constitutional Court’s existing
case-law that a requirement of the German Bundestag’s approving the
Bundeswehr deployment at hand can be inferred from the Basic Law. The
applicant also cannot successfully assert that from the point of view of
the constitutional reservation in Article 87a.2 GG, the employment of
the Bundeswehr lacked a constitutional basis because no right of the
German Bundestag of its own results from this statute.
In essence, the decision is based on the following considerations:
In so far as the applicant seeks to derive the violation of a
participatory right of the German Bundestag specifically from what it
believes to be the unconstitutionality of the deployment of the
Bundeswehr, it lacks capacity to make the application. That is because,
in the case of unconstitutionality, a state of affairs in conformity
with the Constitution could not have been established even by the prior
consent of the German Bundestag in the form of an ordinary resolution.
Moreover, it is not apparent to what extent participatory rights of the
German Bundestag in relation to specific deployments of the Bundeswehr
within the country, whether they be armed or unarmed deployments, could
exist even where the Basic Law itself does not provide for them.
In previous decisions, the Federal Constitutional Court has inferred
from the provisions of the Basic Law which concern defence the principle
of a mandatory requirement of parliamentary approval for the armed
deployment of armed forces only in respect of deployments of the
Bundeswehr abroad.
For the purposes of internal employment of the Bundeswehr during a state
of defence or a state of tension (Article 87a.3 GG), that is to say, in
so far as the armed forces are authorised or may be empowered to protect
civilian property and to perform traffic control functions, the
participation of the legislative bodies results from the prior
determination of the state of defence or state of tension, to be made by
the German Bundestag with the consent of the Bundesrat. By contrast,
there is no provision for consent of the German Bundestag for the
specific deployment.
Moreover, in the case of the employment of armed forces in protecting
civilian property and in combating organised insurgents who are armed
with military weapons, which is possible under Article 87a.4 GG, only a
right of recall exists. This means that the deployment is to be
discontinued if the German Bundestag or the Bundesrat so demands. No
further-reaching participatory rights of the German Bundestag with a
view to internal employment of the Bundeswehr are provided for in the
Basic Law. Nor are they to be derived from the description of the
Bundeswehr as a parliamentary army, which is used in the context of
deployments abroad.
Also in so far as the applicant wishes to have it declared that, from
the point of view of the constitutional reservation in Article 87a.2 GG,
the employment of the Bundeswehr lacked a constitutional basis, the
complaint of violation of a right of the German Bundestag cannot be
upheld. Under Article 87a.2 GG, apart from defence, the armed forces may
be employed only to the extent expressly permitted by the Basic Law. At
least in the case of deployments of the Bundeswehr within the country, a
constitutional amendment would therefore be necessary in the event of
any overstepping of the limits within which the Basic Law permits them.
However, a condition for reliance by the German Bundestag on a right
conferred on it by the Basic Law in Organstreit proceedings is that that
right must be conferred on it exclusively for its own exercise or for
participation. According to the case-law of the Federal Constitutional
Court, the status of the German Bundestag as a constitution-amending
legislature does not give it such a right. Otherwise it would simply be
permitted, by way of Organstreit proceedings, to exercise abstract
review of the constitutionality of the opposing party’s conduct.
Beyond the constitutional reservation, however, Article 87a.2 GG does
not give the German Bundestag any rights of its own. Nothing is to be
inferred, either from the wording of that provision or from its drafting
history and objective, which point to a freedom-safeguarding function,
as evidence that a competence-protecting effect in favour of the German
Bundestag should be attributed to it.
Even if it were assumed – a point which could remain undecided in this
case – that the measures taken had interfered with fundamental rights,
the German Bundestag would not be able to invoke any such violations of
rights of individuals by means of an Organstreit before the Federal
Constitutional Court. That is also true in the event that the threshold
for deployment of the armed forces, as referred to in Article 87a.2 GG,
would have been overstepped. Even in those circumstances, the complaint
of violations of fundamental rights in constitutional proceedings must
remain reserved to the persons concerned.
This press release is also available in the original german version.
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