Order of 30 June 2025

R e a s o n s :

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With his constitutional complaint, the complainant seeks administrative rehabilitation.

I. 

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1. The Act to Repeal Administrative Decisions in the Acceding Territory which Violate the Principle of the Rule of Law and Claims Associated with Such Decisions (Act of Administrative Rehabilitation, Verwaltungsrechtliches Rehabilitierungsgesetz − VwRehaG) forms the basis for the repeal of acts of public authority by the former German Democratic Republic (Deutsche Demokratische Republik - DDR, hereinafter GDR) which are absolutely incompatible with the principles of the rule of law and which continue to have severe and unreasonable direct effects (cf. § 1(1) first sentence of the Act of Administrative Rehabilitation). The law was introduced by the Second Law to Remove Injustices of the German Socialist Unity Party (Zweites SED-Unrechtsbereinigungsgesetz - 2nd SED-UnBerG) of 23 June 1994 (Federal Law Gazette I, Bundesgesetzblatt - BGBl, p. 1311) and created an exception to the principle in Art. 19 first sentence of the Unification Treaty that administrative decisions of the GDR remain legally valid.

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In § 1(2) of the Act of Administrative Rehabilitation, the legislator explicitly included measures of political persecution and acts of arbitrariness on the individual level as a particular indication (cf. Bundestag document, Bundestag Drucksache - BTDrucks 12/4994, p. 18) of a violation of fundamental principles of the rule of law. Such measures also took the form of so-called measures of subversion, which aimed to influence the attitudes of citizens of the GDR. In accordance with no. 2.6.2.(2) of Directive no. 1/76, enacted in 1976 by the Ministry of State Security of the GDR for the development and adaptation of operative processes, measures of subversion involved the systematic discreditation of public perception, the systematic organisation of professional and societal failures in order to undermine the self-confidence of individuals, the targeted undermining of personal beliefs, including with regard to their role models or the amplification of rivalries through the exploitation of personal weaknesses. In the view of The Ministry of State Security, the operational methods of subversion went beyond those listed in the directive and were unlimited ([...]). The measures were carried out by so-called unofficial employees of the Ministry of State Security. So-called ‘societal workers for security’ were employed by the Ministry, particularly at the management level of organisations of the state or political parties. This subversion amounted to punishment without trial and conviction for the purpose of repression, resulted in inhuman, cruel and degrading treatment without being overtly violent and, because of its intense effects, usually had devastating consequences for the individuals affected ([...]). This subversion amounted to perfidious demoralisation (cf. Decisions of the Federal Administrative Court, Entscheidungen des Bundesverwaltungsgerichts – BVerwGE 181, 173 <177 f. para. 21>, citing BTDrucks 19/14427, p. 26).

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2. The constitutional complaint of the complainant concerns the ordinary courts’ assessment of whether the complainant’s claim under the Act of Administrative Rehabilitation is precluded. In December 1978, the complainant voluntarily disclosed his planned escape from the GDR to the police. During the police interrogation, in which the complainant did not have legal counsel or support of another kind, the complainant named two other people involved in his escape plan. The complainant was 18 years old at the time and though he had completed his professional training as a plumber, he was working as a metalworker at the Berlin Ensemble.

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3. After his application for administrative rehabilitation in 2015 was dismissed on the basis that no measures in violation of the rule of law had taken place, the complainant brought an action before the administrative courts.

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a) In its judgment of 28 January 2021, the Berlin Administrative Court dismissed the complainant’s claim. In a judgment of 19 October 2022 on his appeal on points of law, the Federal Administrative Court partially reversed the decision of the Berlin Administrative Court, insofar as it pertained to the complainant’s administrative rehabilitation with regard to surveillance of the complainant by employees and informal employees of the Ministry of State Security during his basic military service, in relation to three arrests through the security agencies of the GDR in 1987 and the prohibition, under pain of incarceration, of two exhibitions of photographs in 1987 and 1989. The subject matter of the last exhibition of photographs was the Polish trade union Solidarność and its movement. [...]

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In its reasoning for remanding the proceedings to the Berlin Administrative Court, the Federal Administrative Court argued that, despite its partial reversal of the administrative court’s decision, it was unable to assess whether an administrative rehabilitation with regard to the measures in violation of the rule of law found to have occurred was precluded by § 2(2) of the Act of Administrative Rehabilitation. This would be the case if the complainant had himself violated the principles of humanity and the rule of law, as is the case when those affected voluntarily and deliberately collected information on their fellow citizens and passed this information on to the state security services of the GDR. Such activity could not be regarded as voluntary, however, if it was taken up or continued under duress. The complainant had named two other citizens to the police on the occasion of his voluntary disclosure of their joint preparations for an escape the GDR. On this basis, the Federal Administrative Court found it appears possible to assume grounds for precluding administrative rehabilitation.

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b) Upon remand, the Berlin Administrative Court dismissed the claim in its judgment of 13 June 2023. It determined that the complainant had volunteered the two names in order to gain an advantage for himself. [...]

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c) By order of 31 July 2024, the Federal Administrative Court dismissed the complainant’s complaint challenging its refusal to grant leave to appeal on points of law. The Federal Administrative Court found that the question raised by the complainant with regard to the fundamental significance of the legal matter, namely whether a person may violate the fundamental principles of humanity merely by volunteering the names of two other individuals during the voluntary disclosure of a planned escape from the GDR in an effort to pre-empt an anticipated denunciation by a third party, could not be answered. For the Federal Administrative Court, the relevant issue was that the Berlin Administrative Court had not determined that the complainant’s voluntary disclosure was made to pre-empt anticipated denunciation by a third party. The administrative court found the assertions made by the complainant in this regard, specifically, that his girlfriend’s stepfather would have also denounced both of his companions, not to be believable. Moreover, the administrative court had assumed that these assertions - even if true - would not have led to the complainant being forced to reveal the name of the two citizens of the GDR.

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Furthermore, the Federal Administrative Court found that the additional question whether the standards developed for unofficial employees of the Ministry of State Security for assessing voluntariness would also be applicable in the case of an applicant who explicitly refused to cooperate, did not have to be decided. The standards for denying the voluntariness of participation did not exclusively apply to such employees. Rather, they are based on a general principle of law.

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Finally, the Federal Administrative Court found that the judgment of the Berlin Administrative Court was not afflicted with the procedural error of a violation of the principle of establishing facts supporting the court’s judgment (Überzeugungsgrundsatz). The administrative court did not accept the documents of the Ministry of State Security as exclusive proof, but rather considered all the facts. [...]

II. 

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1. In his constitutional complaint lodged on 16 September 2024, the complainant claims a violation of his fundamental right to effective legal protection, which he bases on Art. 2(1) in conjunction with Art. 20(3) of the Basic Law. He further asserts a violation of the prohibition of arbitrariness in accordance with Art. 3(1) of the Basic Law.

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[…]

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2. The Federal Ministry of Justice (Bundesministerium der Justiz) and the Ministry of the Land Berlin for Justice and Consumer Protection (Senatsverwaltung für Justiz und Verbraucherschutz des Landes Berlin) were notified of the constitutional complaint proceedings in accordance with § 94(2) of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz – BVerfGG) and were given the opportunity to submit statements.

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3. […]

III. 

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The Chamber admits the constitutional complaint for decision in accordance with § 93a(2) letter b of the Federal Constitutional Court Act, because doing so is appropriate to enforce the complainant’s fundamental rights. The constitutional complaint satisfies the requirements set out in § 93c(1) first sentence of the Federal Constitutional Court Act, allowing the Chamber to grant the complaint. The relevant constitutional questions have already been settled by the Federal Constitutional Court. The admissible constitutional complaint is manifestly well-founded.

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The order of the Federal Administrative Court of 31 July 2024 violates the complainant’s fundamental right to effective legal protection in accordance with Art. 19(4) first sentence of the Basic Law. In this order, the requirements for demonstrating grounds for admitting an appeal on points of law in the present case were too strictly applied (see 1. below), which lead to the dismissal of the complaint challenging the denial of leave to appeal the judgment of the Berlin Administrative Court on points of law (see 2. below).

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1. The requirements applicable to the handling of matters of appellate law by the courts follow from the general right of access to justice in accordance with Art. 2(1) of the Basic Law in conjunction with the rule of law principle (Art. 20(3) of the Basic Law) in the context of civil proceedings (cf. BVerfGE 82, 126 <155>; 93, 99 <107>; 107, 395 <401, 408>) and, in administrative proceedings like the present case, from the principle of effective legal protection (cf. BVerfGE 74, 228 <234>; 88, 118 <123 f.>).

20

The first sentence of Art. 19(4) of the Basic Law does not guarantee an appeal in all cases (cf. BVerfGE 104, 220 <231>; 125, 104 <136>). However, if the legislator has provided for an appeal procedure and procedural law provides the parties to the proceedings with the possibility – in this case a complaint to challenge the denial of leave to appeal on points of law in accordance with § 16(1) third sentence of the Act of Administrative Rehabilitation in conjunction with §§ 135, 133 of the Code of Administrative Court Procedure – to seek to have an appeal admitted, access to such an appeal may not be impeded in a way that is unreasonable and cannot be justified by pertinent reasons, and therefore must be considered objectively arbitrary. This applies to the courts’ handling of both the requirements for demonstrating the admissibility requirements provided for by law, and the extent to which these admissibility requirements must be fulfilled (cf. BVerfGE 125, 104 <137>; 134, 106 <117 f. para. 34>; 151, 173 <184 para. 27 f.>).

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The order of the Federal Administrative Court on the complaint challenging the denial of leave to appeal on points of law does not meet these standards. In applying the requirements for admitting an appeal, the Federal Administrative Court impeded access to the appeals court in a manner that cannot be plausibly justified with regard to the criterion of fundamental significance. The court’s justification for not being able to answer the question raised, which in principle is relevant, of whether a person violates the fundamental principles of humanity by volunteering the names of two other individuals during the voluntary disclosure of a planned escape from the GDR in an effort to pre-empt an anticipated denunciation by a third party, is not comprehensible.

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a) According to the case-law of the Federal Administrative Court, which is constitutionally unobjectionable (cf. BVerfGE 151, 173 <186 Rn. 33>), a legal matter is only of fundamental significance in accordance with §§ 135, 132(2) no. 1 of the Code of Administrative Court Procedure if the proceedings in the appeal on points of law are expected to result in the clarification of a question regarding the law applicable as a standard of review in an appeal on points of law which is relevant beyond the individual case underlying the complaint, and which requires consideration by a court of appeal in the interest of the unity or the development of the law (cf. BVerwGE 13, 90 <91 f.>).

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b) The Federal Administrative Court found that the first legal question which the complainant considered to be of fundamental importance did not require clarification, as it was not at issue in the proceedings seeking an appeal on points of law. The administrative court had not determined that the complainant had in fact pre-empted an anticipated denunciation by a third party through his voluntary disclosure. The administrative court had found that it was not believable that the stepfather of the complainant’s girlfriend would have also denounced both the complainants’ companions. Furthermore, the administrative court also assumed that the complainants’ submission did not lead to the assumption that the complainant had been forced to name his two companions.

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c) This reasoning disregards one decisive case in which the question directly raised by the complainant with regard to § 2(2) of the Act of Administration Rehabilitation, which, as federal law, forms the standard of review for the appeal on points of law sought by the complainant, is relevant.

25

The Federal Administrative Court assessed the relevance of the question on the basis of the facts of the case, to the extent that these were determined by the administrative court, that the anticipated denunciation by a third party which the voluntary disclosure attempted to pre-empt would also have affected the companions. However, such a limitation does not follow from either the wording of the question that was submitted as fundamentally significant, nor from the reasons given by the complainant for his complaint against the refusal of leave to appeal on points of law of 29 August 2023.

26

The wording of the question only refers to the pre-emption as it relates to the anticipated denunciation threatened by a third party. However, the scope of the anticipated denunciation was not specified. Rather, the question was phrased openly, meaning that it could have referred to just the anticipated denunciation of the complainant, who subsequently made a voluntary disclosure, or included the anticipated denunciation of his companions.

27

Nor does such a limitation of this fundamental question to only one of these cases result from a consideration of the reasons submitted by the complainant in the proceedings seeking permission to appeal on points of law. [...]

28

If the Federal Administrative Court thus fails to consider a relevant factual constellation, then the reasons given in its order deviate from the aspects that are relevant to the question whether there are grounds for admitting an appeal on points of law in a manner that is no longer objectively justifiable.

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2. The Federal Administrative Court’s dismissal of the complaint challenging the denial of leave to appeal on points of law in the present case is based, according to constitutional standards, on an unconstitutional application of the requirements for admitting an appeal on points of law due to fundamental significance.

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a) The order of 31 July 2024 does not contain reasoning which demonstrates that the fundamental significance of the above-mentioned legal question can be denied in a way that is compatible with the requirements of constitutional law. Furthermore, the fundamental question raised in the present case concerns the highly specific situation of naming third parties. It involves a voluntary disclosure. Situations involving self-incrimination raise legal questions which do not yet appear to have been clarified by the ordinary courts in a sufficiently differentiated manner. This can give rise to the need to create a differentiated standard for a violation of the principles of humanity (§ 2(2) of the Act of Administrative Rehabilitation) that extends beyond the existing criteria of forced or voluntary action. This is because situations involving self-incrimination are of a fundamentally different nature than passing on information to the state security services for one’s own benefit or to harm others.

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b) Additionally, the violation of the right to effective legal protection is not negated by the reasons given in the order of the Federal Administrative Court with regard to a procedural error in form of a violation of the principle of establishing facts supporting the court’s judgment (§ 108(1) first sentence of the Code of Administrative Court Procedure) as grounds for admitting an appeal on points of law.

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[...] It is apparent that the reasons given by the administrative court for its judgment failed to include certain obvious and evident facts in a manner that is objectionable under constitutional law. This results in the objective arbitrariness of the apparent decision-making process, and thus also the assessment of evidence in the judgment. In the proceedings seeking permission to appeal on points of law, the complainant challenged these procedural errors and thus contended that they were relevant to the fundamental question raised.

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The Federal Constitutional Court reviews the assessment of evidence by the ordinary courts and their factual findings based on the standard of the prohibition of arbitrariness (cf. BVerfGE 4, 294 <297>; 34, 384 <397>; 96, 189 <203>). A mere violation of ordinary law is insufficient to violate this prohibition. Rather, this requires a decision which cannot be considered legally tenable under any conceivable aspect (cf. BVerfGE 87, 273 <278 f.>; 89, 1 <13 f.>; 96, 189 <203>; 112, 185 <215 f.>).

34

The administrative court formally based its decision on the fact that it found contradictions within the different statements it had considered, without considering the time in which they were made or the circumstances of those who made them, despite these aspects being indispensable for an overall assessment in the present case. The reasons for the judgment cannot dispel the indication that the administrative court disregarded these aspects, which they could not do without acting in an arbitrary manner.

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aa) […]

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bb) [...] There is no indication in the reasons of the judgment of the administrative court that the administrative court’s conclusion that the voluntary disclosure took place due to external pressure took into account any of the circumstances which suggest that the complainant did not act on the basis of his own affirmative motivations, but rather in response to negative motivation caused by third parties.

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Firstly, according to written statements made by the complainant in 2023, he found himself in a criminal interrogation without support, as the individual who had accompanied him was not permitted to be present in the interrogation. Secondly, it appears evident that the complainant did not name his two companions in an attempt to establish a future cooperative relationship with state authorities and thereby gain advantages for himself. In his written statements from 2023, the complainant not only showed that he refused an attempt to recruit him on the following day, when he was picked up from his place of work and was then interrogated by the Ministry of State Security. Rather, the administrative court, in accordance with the previous determinations of the Federal Administrative Court, assumed that several measures which violated the rule of law were subsequently taken to the detriment of the complainant.

IV. 

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[…]

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The monetary value of the matter in dispute (Gegenstandswert) has been fixed based on § 37(2) second sentence in conjunction with § 14(1) of the Act on the Remuneration of Lawyers (Rechtsanwaltsvergütungsgesetz – RVG) (cf. BVerfGE 79, 365 <366 ff.>).

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This decision cannot be appealed.