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Proceedings concerning the prohibition of assisted suicide services (Geschäftsmäßige Förderung der Selbsttötung, § 217 of the Criminal Code) will be decided without participation of Justice Müller

Press Release No. 11/2018 of 13 March 2018

Order of 13 February 2018
2 BvR 651/16

The Second Senate of the Federal Constitutional Court has decided that it must render its decision on a constitutional complaint directed against the prohibition of assisted suicide services (§ 217 of the Criminal Code, Strafgesetzbuch – StGB) without participation of Justice Müller on the grounds of possible bias. In this regard, the applicable standard is not whether a Justice is in fact prejudiced or biased; rather, it must be assessed whether it is reasonable for parties to the proceedings, taking into account all relevant circumstances, to doubt the Justice’s impartiality. The overall assessment shows that this standard is met in the present case: prior to his election as Justice of the Federal Constitutional Court, Justice Müller had in his former function as minister president taken a clear stance on a substantive question that is now directly at issue in proceed-ings pending before the Court; he had also introduced a draft law in the Bundesrat that was in most parts identical to the statutory provision in dispute. According to the legal requirements, lots will be drawn to select a Justice of the First Senate as a substitute.

Facts of the Case:
In a speech from the pulpit (Kanzelrede), delivered in 2001 as then Minister President of the Saarland, Justice Müller affirmed the principle that “life is inalienable” and opposed active eu-thanasia, while also demanding that more care and support be provided to dying persons. In 2006, the Land government headed by Minister President Müller held a meeting with church representatives. Regarding the outcome of this meeting, a press release stated that both the Land and the churches condemned “assisted suicide services” brought about by the founding of the association “Dignitas Deutschland” and that the Saarland had declared its intention that, in response to the founding of the association, it would join forces with the Free State of Thuringia in order to take action against permitting this type of active euthanasia and to campaign for making it a punishable offense under criminal law. In the same year, a draft law prohibiting assisted suicide services submitted by Minister President Müller failed to obtain a majority in the Bundesrat. § 217 StGB in the version that is challenged in the current proceedings is based on a legislative draft law that is largely identical to the draft submitted by Minister President Müller in 2006 and repeatedly refers to the 2006 draft and its explanatory memorandum.

Key considerations of the Senate:
It is inherent and even intended in the legal framework governing the election of Justices of the Federal Constitutional Court that persons who, as representatives of political parties, have exer-cised political functions in parliament or held political office in the executive, may be elected and appointed as members of the Federal Constitutional Court; this way, they can draw on their polit-ical experience to enrich the jurisprudence of the Court. The decision of this constitutional and legislative framework rests on the assumption that the Justices of the Federal Constitutional Court possess the independence and distance necessary for ensuring impartiality and objectivity in their decisions, and that they exercise their judicial duties independent of their former involvement in partisan political disputes. The fact that a Justice had previously been tasked with policy-making and, in this context, participated in the battle of opinions in the political arena, this does not in itself suffice to create an apprehension of judicial bias.

Doubts regarding the objectivity of a Justice of the Federal Constitutional Court may, however, be justified if there is an obvious inner connection between a – strongly advocated – political opinion and the Justice’s legal views; the same applies if in the past the Justice concerned had advocated for certain legislative reforms that are directly connected to proceedings brought be-fore the Court during the Justice’s term of office. The decisive factor is whether the relevant con-duct supports the conclusion that the Justice is no longer open and impartial with regard to a legal view contradicting the Justice’s own convictions, but has “already made up his or her mind” in-stead.

According to the wording of the Federal Constitutional Court Act, participation in the legislative process is no sufficient reason for an apprehension of bias; therefore, it must be established that additional circumstances create a particularly close connection between the Justice concerned and the law submitted for constitutional review. This may be the case, for instance, if, as a former politician, the Justice had strongly and publicly advocated a highly controversial and politically sensitive law, or if the Justice had taken a clear stance regarding a substantive issue that directly concerns the proceedings now pending before the Court.

Such circumstances exist in the present case. In his capacity as Minister President, prior to his election as Justice of the Federal Constitutional Court, Justice Müller positioned himself in a clear and substantive manner by giving the above-mentioned church speech and by sharing his views on euthanasia; this directly concerns the present proceedings before the Court. Moreover, he had introduced a draft law in the Bundesrat that was evidently inspired by the aforementioned political position, and that strongly resembles the provision in dispute. The explanatory memo-randum attached to the former draft law was distinctively based on constitutional law arguments. In this respect, the role of Justice Müller as then Minister President was not limited to a minor, “merely participatory” involvement in the legislative process. Rather, he had provided the political impetus for the legislative project in question and also formally initiated the legislative process; he had personally campaigned in public for a highly controversial politically sensitive law and had expressly opposed associations offering assisted suicide. In view of this particularly close connection to the legal provision under review, that in the case at hand stems from a personal conviction, and the fact that the contents of the legal provision in dispute closely resembles the previous draft law introduced by Justice Müller, even the considerable time that has passed since the relevant legislative process does not rule out the apprehension of bias.