FECL 44 (June 1996):
Three regulations of the new asylum law, all aiming to cordon off the country against asylum seekers were examined by the Court: the Third country rule, the "safe country" concept, and the so-called "airport procedure" - a fast-track procedure for dealing with "manifestly unfounded" asylum applications.
While the judgement of the Constitutional Court is celebrated as a triumph by the Government, human rights and refugee aid organisations are in a state of shock.
It should be recalled that it was the Social Democrat Party (SPD) that opened the way for the de facto abolition of the right to asylum - in Germany of all countries.
"Political persecutees enjoy the right to asylum", it simply and clearly said in the German Constitution until 1993. And that was a historically unique achievement. It was an answer of the young Federal Republic of Germany to the crimes of Nazi Germany and it consisted in giving a concrete form to the "inviolability of human dignity" in making the right to asylum a fundamental right of constitutional status that can be claimed before courts by individuals. The brilliantly unequivocal wording of the 1949 Constitution was strong enough to undermine to a certain extent the European "closed doors" policy of the early 90s. But when the number of asylum seekers in Germany rose from 100,000 to 400,000 between 1989 and 1992, after the fall of the Iron Curtain, the German state considered itself overstrained. Both the Government and conservative circles started a campaign against "asylum swindlers" and called for a change - or even the downright abolition - of the constitutional right to asylum.
The campaign contributed to the rise of an atmosphere of pogrom throughout the country: the homes of asylum seekers burned, racist attacks multiplied. At many places, the life of anyone looking like a foreigner was at risk.
In this crucial situation the maintenance of the right to asylum depended on the steadfastness of the SPD. Without the Social Democrat votes the conservative majority in the Bundestag (Federal Parliament) would not obtain the two thirds majority, necessary in Germany for a change of the Constitution. Out of fear of a loss of popularity the SPD-leadership decided at a closed conference to bow to the atmosphere of pogrom. The SPD agreed upon an amendment of the Constitution with the governing conservative Christian Democrat parties, CDU and CSU.
The amendment amounted to actually dismantling the right to asylum by three drastic restrictions:
1. The Third Country rule: a refugee entering Germany via a country rated "safe" by the German government, is returned at once and without a procedure or access to legal remedy. Since the Government regards Germany's neighbours as "safe", refugees can no longer get to Germany by land.
2. Asylum applications of refugees from countries defined by (German!) law as free of persecution and humiliating treatment (at present: Bulgaria, Rumania, Hungary, Slovakia, the Czech Republic, Poland and Ghana) are turned down. Nationals of these so-called "safe countries of origin" may lodge a complaint against the automatic rejection of their asylum application to an Administrative Court, based on their claim that the country of origin in question is not safe with respect to their particular case. However, experience shows that only an infinitesimal number of such complaints result in asylum being granted.
3. These rules are complemented by an implementing provision in the asylum procedure law aimed at asylum seekers arriving by airplane (i.e. mostly at Frankfurt International Airport): they are not allowed to enter German territory but are detained in an "extra-territorial" building at the airport. Officials of the BAFl (Federal Office for the Recognition of Refugees) must interview them immediately upon arrival, allow them to call up a lawyer, and decide upon their asylum application within two (!) days. Statements of BAFl officials prove that the interviews actually rather resemble criminal interrogations. Asylum seekers are a priori suspected of lying. Decisions are often coloured, i.e. based on very subjective assessments of the interviewing officer, e.g. about whether an applicant appears "trustworthy" or not. If the BAFl turns down the application as "manifestly unfounded", the asylum seeker may apply for entry to the German territory before an Administrative Court on provisional legal protection grounds. The Court must decide upon this application within two weeks. Thus, the entire procedure does not take more than 19 days.
The Federal Constitutional Court has now prolonged this period by four days. But a comprehensive examination of an asylum seeker's claim and a fair legal defence are still not possible under such circumstances. Since no opportunity for appeal is provided for by the law, the contradictory jurisdiction of Administrative Courts cannot even be standardised. The refugees are held in the extra-territorial zone so as to enable their immediate return to their airport of departure - even if they lack travel documents - in the event of their application being turned down as "manifestly unfounded". Indeed, once an insufficiently documented person has entered German territory, it is complicated and time-consuming to send him/her back.
In its judgement, the Federal Constitutional Court quite boldly contends that the constitutional right to asylum is not restricted in an inadmissible way by these three regulations. Substantial parts of its decisions were passed with five votes against three, and dissenting opinions were published. However, as far as the only legally valid decision of the majority is concerned, there are reasons to suspect that it is a political decision. As a matter of fact, the Federal Constitutional Court recently incurred the wrath of conservative-religious circles with three judgements. One concerned the controversial issue of abortion. Another, the so-called "soldier decision", stated that it is lawful to quote the following words of Kurt Tucholsky (a renowned anti-Nazi writer and journalist of the 20s and 30s): "Soldiers are murderers". Finally, the so-called "crucifix judgement" prohibited the Land of Bavaria from prescribing by law the mounting of crucifixes in public schools.
The political courage of Germany's highest court seemed exhausted, especially since the Government increased political pressure on the judges. While the Federal Judges were deliberating, the Federal Interior Minister, Manfred Kanther, above all, repeatedly publicly warned against what he called the obstruction of the new asylum law and threatened with the "anger of the people". He also spectacularly complained about a TV broadcast that dealt critically with German asylum practice.
With currently approximately nine per cent of asylum applications resulting in asylum, the recognition quota in Germany is still relatively high (as compared with other European countries). This is, however, mainly due to "old" cases, i.e. asylum seekers who made their applications before July 1993. The number of such cases is of course steadily diminishing.
Once the "dismantled" new asylum law is fully implemented, the number of recognised refugees will "drop down in the cellar", says Wolfgang Grenz, the asylum expert of Amnesty International's German section. The "asylum judgement" has, indeed, provided for exactly this to happen. Before, at least those refugees who arrived by land - i.e. via a "safe third country", but who did not know or concealed their itinerary - had a chance of obtaining asylum. The judgement of the Constitutional Court excludes any chance for these refugees to obtain asylum. Instead, they will have to make do with short-time, semi-legal "tolerance" permits allowing their immediate deportation as soon as a country willing to readmit them can be found.
The judgement has tapped another loophole for humaneness. Hitherto, lawyers could sometimes prevent a deportation by filing an urgent appeal to the Constitutional Court. This possibility no longer exists. Petitions against deportation measures may still be filed, the "asylum judgement" establishes, but they no longer have a suspensive effect. In other words, the complainant is deported and may wait for the decision of the German court "at home" - in many cases probably in prison or in a grave. This decision is particularly grotesque in view of the fact that, with regard to one of the five pilot cases considered in the "asylum judgement", the Constitutional Court ordered a review of the case by the subordinate court on the grounds that grave errors had been made. One of the lawyers of the successful Togolese applicant, Kouessi S., commented: "The Togolese who won here, would never have won, if this judgement had already been pronounced". And a colleague added:
"Henceforth it will be impossible to remedy a similar case via the Federal Constitutional Court". Indeed, in one and the same judgement the Constitutional Court admits the need for reviewing court decisions and de facto prevents the use of this legal remedy in future cases.
The judgement of the Federal Constitutional Court has consequences far beyond the domain of asylum law. Indeed, when the judiciary admits that immediate execution sets irreversible facts before the latter have been finally considered by the courts, jurisdiction will increasingly resemble an irrelevant scholastic exercise. What is the use of jurisdiction, when, for instance, an environmentally-damaging industrial project can be realised before a court finds that the building permit breached the law?
Felix Schneider (Frankfurt/Main)