BVerfG, 2 BvR 2259/17, 2017
- 2017
- Germany
Topics
Terrorism financingLegal bases
Germany: Constitution of 1949, Basic Law for the Federal Republic of Germany (Grundgesetz für die Bundesrepublik Deutschland (GG))Courts
Federal Constitutional Court, GermanyLaws
Torture, degrading and inhuman and treatment Right to an effective remedy Right to life Right of asylumFacts
The proceedings concerned a Turkish citizen convicted of supporting a terrorist organisation, challenging his expulsion from Germany and impending deportation to Turkey. The applicant was convicted for supporting a terrorist organisation abroad and handed down an aggregated prison sentence of three years and six months on the grounds that he had joined Salafist groups and had made significant monetary and in-kind contributions to the terrorist organisation Junud al-Sham in Syria. In June 2016, the competent immigration authority ordered the applicant’s expulsion and notified the applicant of his impending deportation to Turkey. The Administrative Court rejected his application seeking interim relief; his complaint to the Higher Administrative Court did not meet with success. The applicant furthermore applied for asylum in August 2017. His application was rejected, however, as manifestly unfounded. The applicant challenged this decision in interim relief proceedings, claiming that Turkish authorities had opened criminal proceedings against him for charges of supporting Islamist terrorism, and that he was at risk of torture. By Order of 21 September 2017, the Administrative Court rejected the application for interim relief. In its reasoning, the Administrative Court held that only members of the Kurdish PKK or the Gülen movement were at risk of torture. The applicant lodged a constitutional complaint directed against the order of the immigration authority and the court decisions in both the expulsion proceedings and the asylum proceedings.
Legal grounds
Article 2.2 first sentence in conjunction with Article 1.1, Article 16a.1, Article 19.4, Article 3.1, Article 2.1, Article 6.1, Article 6.2, Article 101 second sentence and Article 103.1 of the GG; Article 3 of the ECHR.
Findings
The Court held that the challenged decision of the Administrative Court violates the applicant’s fundamental right under Article 19.4 first sentence in conjunction with Article 2.2 first sentence of the Basic Law. The principle of effective legal protection under Article 19.4 first sentence of the Basic Law is not limited to the requirement that recourse to the courts be available against any act of executive authorities potentially violating individual rights; rather, courts are also called upon to ensure that the affected rights can be effectively enjoyed in practice. The standard of what is considered effective legal protection is determined, inter alia, based on the substantive content of the right whose violation is asserted, in this case human dignity and the right to life and physical integrity in conjunction with the guarantees of Article 3 ECHR as interpreted in light of the case-law of the European Court of Human Rights. The reasoning of the Administrative Court that only Kurdish and Gülen supporters are at risk of torture, failed to meet constitutional requirements. In light of the written submission authored by Amnesty International and furnished by the applicant in the relevant proceedings and, most notably, in light of general assessments concerning the political situation in Turkey of which it can be assumed that they were known to the Court, there was reason for the Administrative Court to conduct further investigations into the facts of the case or to obtain assurances from the Turkish authorities regarding the envisaged treatment of the applicant.