Order of 12 December 2024 - 2 BvR 1341/24
In an order published today, the Second Chamber of the Second Senate of the Federal Constitutional Court did not admit for decision a constitutional complaint lodged by an Afghan citizen. The complainant was granted international protection status in Greece. He travelled to the Federal Republic of Germany and made an application for asylum, which was dismissed as inadmissible by the Federal Office for Migration and Refugees (Bundesamt für Migration und Flüchtlinge – BAMF). The complainant challenged this dismissal before the Administrative Court (Verwaltungsgericht) and applied for injunctive protection. The Court issued an order rejecting the application for injunctive protection as, based on the available information, the complainant would not experience inhuman treatment in Greece.
The complainant lodged a constitutional complaint challenging this decision. He claims, inter alia, a violation of his right to effective legal protection following from Art. 19(4) first sentence in conjunction with Art. 2(2) first sentence of the Basic Law (Grundgesetz - GG). He submits, inter alia, that a decision against him should not have been issued in injunctive proceedings as long as proceedings were pending before the Federal Administrative Court (Bundesverwaltungsgericht) in another matter relating to § 78(8) of the Asylum Act (Asylgesetz - AsylG).
The constitutional complaint was not admitted for decision because it is inadmissible.
The complainant did not sufficiently demonstrate that the challenged decision violates his right to effective legal protection. He does not submit which aspects of the current living conditions in Greece could amount to a violation of his fundamental right under Art. 2(2) first sentence of the Basic Law.
It is also unobjectionable under constitutional law that the Administrative Court issued a decision in injunctive proceedings without waiting for the conclusion of the ’appeal on the facts’ (Tatsachenrevision) pending before the Federal Administrative Court, which will render a decision on the general situation of individuals with international protection status facing deportation to Greece. A broadening of the suspensive effect beyond the appeal on points of law in the pending proceedings cannot be derived from § 78(8) of the Asylum Act, and would also be incompatible with the limited prejudicial effect of appellate decisions. Constitutional law does not call for a ’preclusive effect’ of the pending proceedings. The fact that an applicant’s prospects of success depend on the evaluation of the facts by the competent court is a consequence of the guarantee of judicial independence in accordance with Art. 97(1) of the Basic Law and an inherent aspect of the fundamental right to asylum as an individual fundamental right. Furthermore, the effect intended by the creation of § 78(8) of the Asylum Act to create consistency in the courts’ assessment of the actual situation in a destination state through an ’appeal on the facts’ does not relieve the courts of their constitutional obligation to make an up-to-date assessment of the relevant factual circumstances.
A pending decision by the Federal Administrative Court on an ’appeal on the facts’ also does not preclude the ordinary courts from addressing cases with the same issues in injunctive proceedings. The risk that a refusal of preliminary legal protection leads to severe and unconscionable impairments that cannot be averted in any other way and cannot be remedied through the principal proceedings must be addressed through an intensified obligation of review in injunctive proceedings, which may even require a full review. This holds particularly true for proceedings under § 78(8) of the Asylum Act, which concern especially volatile issues of fact.