The Thin Red Line

The current policy of the German government toward Afghan human rights defenders, local staff, and other refugees who hold German admission commitments is – literally and legally – a crime. This is the conclusion of a legal opinion prepared in July by attorney (and former Verfassungsblog editor) Robert Brockhaus for Pro Asyl and the Patenschaftsnetzwerk Ortskräfte e.V.

The legal opinion finds that politicians and officials actively or passively expose people who have waited months for a visa in Islamabad to arrest and deportation and thus put their lives at risk. As such, they may be personally criminally liable under Section 221 of the German Criminal Code (“Abandonment of Helpless Persons”).

Once the German state has granted someone a legally binding admission commitment, it must issue the visa – unless there has been a relevant change in circumstances (not merely in political convenience). The Berlin Administrative Court has repeatedly and unequivocally confirmed this obligation. According to Eva Beyer of the NGO Kabul Luftbrücke, there are currently 43 such interim court orders. All of them state clearly: the federal government is legally required to issue these visas.

It does not, in many cases at least. The current government, bound by Article 20(3) of the Basic Law to act according to law and justice, evidently considers itself not bound by this particular law. In several cases, the court has already imposed a coercive fine of 10,000 euros against the Federal Republic of Germany (a largely toothless instrument – but still). The technical term for this growing phenomenon is executive disobedience. The so-called “honorable man theory” (see here, p. 73 ff.) – the assumption that state authorities naturally comply with judicial rulings, so that enforcement is unnecessary – seems, by now, factually disproven. The understanding of “honour” in Alexander Dobrindt’s Interior Ministry appears to differ considerably.

++++++++++Advertisement++++++++++++

Band III des neuen Handbuchs des Staatsrechts ist der Demokratie gewidmet. Die Beiträge renommierter Staatsrechtswissenschaftler*innen behandeln deren theoretische und verfassungsrechtliche Grundlagen, die politische Willensbildung in der Gesellschaft, den Status der politischen Parteien, die auf der Grenze zwischen Gesellschaft und Staat den Volkswillen in die Staatssphäre hinein vermitteln, sowie das parlamentarisch-demokratische Regierungssystem.

Mehr Informationen hier.

+++++++++++++++++++++++++++++++

The ministry has now come up with a new idea: to revoke the admission commitments via the Federal Office for Migration and Refugees (BAMF), which operates under its authority. This emerges from a recent decision by the Ansbach Administrative Court (Case No. AN 5 S 25.2435), which I have read. According to Eva Beyer, the case is representative of the government’s current practice. The logic seems clear: by withdrawing the admission commitment, the binding administrative act is eliminated, the Berlin court orders become moot, and those sheltering in safe houses in Islamabad can be evicted – allowing Pakistani police to deport them back to Afghanistan and thus “solve” the problem neatly.

The Ansbach case concerns a musician and a heavily pregnant gynaecologist. The musician –  music being strictly forbidden under the Taliban – had received through intermediaries a photo of an arrest warrant against him (for more details in this and other cases, see here). Initially, the danger to him and his wife seemed real and substantial. Then BAMF, all of a sudden, changed its mind and found that the risk did not seem to be all that severe after all. The arrest warrant, so the reasoning, had not been submitted in original form, just as a photo, and thus could not be verified. The admission commitment had been unlawful from the outset and therefore had to be revoked.

The court’s assessment of the merits of this argument is this:

“The respondent merely asserts, without substantiation and without providing a comprehensible explanation – and without engaging with the specifically and temporally identifiable threat situations described in the risk report that formed the basis of the admission commitment – that the assumption of an individual, concrete risk to the applicants had been incorrect. Even if, following the Taliban’s seizure of power, the applicants have in fact not experienced any concrete problems and no (further) assaults or threats have occurred, this does not mean that the admission commitment of 22 May 2024 was unlawful or issued in violation of the provisions of the admission order of the Federal Ministry of the Interior (BMI). According to that order, the prerequisite for an admission commitment is an individual risk, not – as stated in the revocation notice – an individual, concrete, activity-related risk. The mere fact that the standard for assessing individual risk under the admission order, or the evidentiary threshold required to establish such risk, has been modified – even if for political reasons – is in any event insufficient to establish the unlawfulness of the admission commitment.”

This interim order of 10 September was upheld by the Bavarian Higher Administrative Court on 26 September (Case No. 19 CS 25.1802). I have read this decision too.

++++++++++Advertisement++++++++++++

Transform your career with Loyola Chicago’s top-ranked LLM for International Lawyers, built on the core principles of academic excellence, affordability, and flexibility. Choose from 160+ courses taught by distinguished and engaged faculty, access tailored career support, and gain hands-on experience in the heart of vibrant Chicago, a major legal and financial hub. Loyola’s LLM empowers ambitious lawyers from diverse backgrounds to excel as ethical global leaders.

Curious? Reach out to Insa Blanke, Exec Dir of International LLM and SJD Programs, Loyola University Chicago School of Law.
Further information.

+++++++++++++++++++++++++++++++

It is the BAMF officials who issue and must answer for these decisions. The office has its own legal department, and it is hard to imagine that the legality of such actions has not been carefully examined. Against this backdrop, we sought to provide those officials with practical guidance. We asked attorney Robert Brockhaus to answer a few questions – specifically, how BAMF staff can avoid committing a criminal offence. As noted: if those abandoned by the German government now face imminent danger to life and limb as a result of these policies, we are talking about a concrete crime. Under Section 221 of the German Criminal Code, abandonment leading to death carries a minimum prison sentence of three years.

1. Robert, where do the boundaries of criminal liability lie for BAMF employees who revoke admission commitments in this way?

Several criminal provisions may apply. Central among them is the offence of abandonment under Section 221 of the German Criminal Code. It penalises anyone who places another person in a helpless situation, thereby exposing them to the risk of death or serious harm.

The German state has officially recognised, in writing, that these individuals face particular danger in Afghanistan. The UN and human rights organizations have repeatedly documented these risks – this year as well. According to NGO workers active on the ground, it is only a matter of time before the first person with a German admission commitment, deported from Pakistan to Afghanistan, is abused or even killed by the Taliban.

But actual death is not required for a criminal offence. The severe psychological trauma suffered by those deported can itself constitute serious harm. When admission commitments are revoked, leading to deportation by Pakistani authorities, there is a direct causal link between the revocation letter and the danger faced by the person in Afghanistan.

One cannot evade criminal responsibility by arguing that Pakistan carries out the deportations. It has been publicly known all year that Pakistani authorities deport people to Afghanistan. Until now, possession of a German admission document has generally protected them. Those who now strip that protection away know that they are paving the way for deportations and exposing people to the Taliban.

Moreover, Germany has long acknowledged its responsibility toward these individuals – for example, by housing them in guesthouses in Islamabad. Officials are therefore legally obliged to prevent harm to them. This duty of care (Garantenpflicht) arises from Section 13(1), second clause, of the Criminal Code.

2. If employees are simply following government orders, how realistic is it to expect prosecutors to investigate?

The internal workings of a prosecutor’s office are difficult to assess from the outside. Much depends on who handles the case, who leads the department, whether there is political pressure, and whether superiors intervene. In politically charged contexts, many factors can influence prosecutorial zeal.

Nevertheless, prosecutors are legally obliged to investigate when they become aware of a suspected crime. A mere initial suspicion – factual indications that an offence may have been committed – is enough. This is a low threshold. Pro Asyl and the Patenschaftsnetzwerk Ortskräfte e.V. filed a criminal complaint in mid-August. I therefore assume that prosecutors will, as required by law, examine the allegations. If it turns out that people whose commitments were revoked have indeed been deported to Afghanistan, prosecutors would be legally bound to pursue that line of inquiry.

++++++++++Advertisement++++++++++++

Young Democracy Rapporteurs have a plan to renew democracy — will the EU listen?

The Our Rule of Law Foundation, national winner of the 2024 European Charlemagne Youth Prize (Netherlands), unites young Europeans to strengthen democracy and the rule of law. Its latest project, the Our Democracy Report, gathers young Democracy Rapporteurs from across EU member states and Ukraine to urge the European Commission to #TakeDemocracySeriously.

Learn more here.

+++++++++++++++++++++++++++++++

3. Can they claim they were merely following orders?

No. Even a small cog in the bureaucratic machine can be criminally liable – especially when the cog helps the machine run. The classic example is Irmgard Furchner, the former typist at the Stutthof concentration camp, convicted as an accessory to murder in thousands of cases. The argument that she was merely following orders was rightly rejected.

All the more today: a German civil servant cannot claim to be under irresistible pressure to obey an order that requires committing a crime. The Furchner case also shows how prosecutorial practice can change over time. Today, it may seem unlikely that civil servants will be prosecuted for abandoning Afghans. That can change.

4. What must they do to stay on the right side of criminal law?

They must not take part in actions that lead to people with German admission commitments being deported from Pakistan to Afghanistan.

First, they should formally raise their objections to the revocation orders with their superiors – as required by civil service law. If instructed to continue, they should escalate the matter to the next level of supervision.

Once an order has been reviewed and upheld, officials are generally released from responsibility – but not if the order is manifestly unlawful and that unlawfulness is evident to them. In that case, they are obliged not to obey.

5. Are they allowed to express legal concerns publicly?
Civil servants enjoy freedom of expression and may publicly criticise their employer. But they are also bound by a duty of restraint and moderation in political matters, and courts have sometimes interpreted that duty narrowly.

To minimise personal risk, they should make clear that they are speaking as private individuals, not as state officials. It also helps if they have first raised the issue internally. If no corrective action follows, they can publicly state that they had first tried internal channels.

When it comes to disclosing non-public information, confidentiality obligations apply. Officials must normally use official channels to report legal violations. However, there are exceptions. Under Section 32(1)(2) of the Whistleblower Protection Act, officials may go directly to the public if irreversible harm or a clear threat to the public interest exists – or if evidence might be suppressed or destroyed.

*

Editor’s Pick

by MORITZ SCHRAMM

A crisis of institutions is unlikely to be solved by the very institutions in crisis.

Fresh thinking, unsurprisingly, tends to come from other quarters: from younger voices less bound by professional habitus, or from disciplines—art, literature, architecture—that approach the social and planetary with a creativity and openness that the social sciences (especially law) sometimes lack. It is from such a vantage that I want to recommend Hierarchien der Solidarität | Hierarchies of Solidarity by Sinthujan Varatharajah and Moshtari Hilal.

The book grows out of conversations between the two—writers, activists based in Berlin and Hamburg—captured in a dialogical format that feels both inviting and sharp (and, to be fair, cannot escape some intellectualizing habitus). The result is rare though: empathy paired with nuance, a critique that resists flattening complexity. I don’t agree with everything they propose, nor does this short book pretend to offer a ready-made solution. But the way of thinking, the refusal of quick fixes, offers something much more valuable: a space to reimagine solidarity beyond slogans, at a time when our public debates too often settle for them.

Sinthujan Varatharajah, Moshtari Hilal – Hierarchien der Solidarität | Hierarchies of Solidarity, Wirklichkeit Books, Berlin 2024

*

This Week on Verfassungsblog

summarised by EVA MARIA BREDLER

The Nobel Peace Prize did not, as some might have guessed, go to Donald Trump today – but to Venezuelan opposition politician María Corina Machado. After Israel and Hamas agreed to the first phase of the U.S. peace plan, Trump made one final pitch for himself yesterday: “I don’t know what they’re going to do, but I know nobody in history has solved eight wars in a period of nine months.” Apparently, the Nobel Committee couldn’t think of anyone who had achieved that either.

At home, Trump shows far less concern for peace. He has long fuelled hatred among his supporters, not just since the storming of the Capitol. With a growing sense of dread, one can observe how, under Trump, America’s democratic constitutional state is morphing into a radicalised political-theological project: power and law are detaching, while church and state seem to fuse. PAUL W. KAHN (ENG) explains why the killing of Charlie Kirk, the rise of Christian nationalist movements, and the state’s willingness to deploy violence against “enemies within” mark a decisive turning point.

Germany, thankfully, is still far removed from such developments. Here, the greater danger lies in the misuse of state neutrality – as in Berlin, where since 2005 the “Neutrality Act” has imposed a blanket ban on wearing visible religious or ideological symbols and garments in courts, the police and schools. The law has stood at odds with the German Constitution at least since the Federal Constitutional Court’s 2015 ruling on headscarf bans. A new reform is meant to fix this, but as SHINO IBOLD (GER) shows, it fails to do so – and the better solution would be to abolish the law altogether.

Another Berlin law has also sparked debate: two weeks ago, the “Deutsche Wohnen & Co Enteignen” campaign presented its proposal for a socialisation law and invited public comment. GEORG FREISS (GER) examines the draft and praises it for fostering an open debate about Germany’s economic and property order – a debate, he argues, that reflects the spirit of the Basic Law and calls on the public, especially legal scholars, to take an active role.

Rival parties, too, are now being called upon to take an active role – this time on party donations. The Administrative Court of Berlin has ruled that the CDU was allowed to accept a controversial €800,000 donation in 2020. This means that the satirical party “DIE PARTEI”, which had sought to have the CDU sanctioned for violating donation rules, lost its case. Yet, as HEIKE MERTEN (GER) explains, the court’s recognition of third-party standing in party financing law is a victory for party democracy: it means that competing parties can now challenge the Bundestag President’s decisions on donations in court.

Nicolas Sarkozy, by contrast, has had less luck. The former French president has been sentenced to five years in prison for illegal campaign financing from Libya – reigniting old accusations of a politicised judiciary in “la République”. But what does it actually mean to be republican? THIBAULT CARRÈRE (ENG) analyses the criticism of the verdict – and the particular conception of republicanism that underlies it.

Sarkozy has appealed, and one legal principle will now guide his fate: ne bis in idem. But this does not only apply to former heads of state. The CJEU has just confirmed that this protection against double jeopardy also applies to convicted terrorists. Spain, the Court held, cannot prosecute a former ETA leader for terrorist acts already tried in France. What matters is not how the offences are legally classified, but whether they concern the same underlying conduct. As ANNE SCHNEIDER (ENG) argues, the ruling is a powerful reminder that even in cross-border terrorism cases, European criminal justice cooperation must respect the rule of law.

Terrorism cases can meet literal spatial limits too: in Magdeburg, the trial over the Christmas market attack has so many victims taking part that the existing courtrooms are too small. A temporary courthouse has now been built – but what does that mean for the principle of public hearings and the role of joint plaintiffs? MAX KLARMANN (GER) explores the delicate balance between participation and procedural fairness.

Courts may also sometimes create space for enemies of the constitution. The Administrative Court of Stuttgart was accused of doing just that after ruling that AfD nominees could not be automatically excluded from serving as lay judges. Critics claimed the court had paved the way for the far-right to enter the judiciary – but as ARNE PAUTSCH (GER) shows, that charge doesn’t hold up.

In the United Kingdom, there may be no written constitution, but its enemies exist nonetheless: calls to withdraw from the European Convention on Human Rights have now entered the political mainstream – from Labour MPs to the Tories, as this week’s party conference made clear. ALICE DONALD (ENG) warns that such a move would dangerously legitimise the far-right playbook.

++++++++++Advertisement++++++++++++

Wissenschaftliche*n Mitarbeiter*in (m/w/d) im Projekt „Zugänglichkeit, Digitalisierung und Analyse historischer, europäischer Dissertationen [Dissify]“ gesucht!

Das Projekt befasst sich mit der Digitalisierung und rechtlichen Erfassung historischer, medizinischer Dissertationen. Kern des juristischen Projektteils ist die Erstellung eines Gutachtens zur umfassenden Nutzung dieser Dissertationen mit einem Fokus auf Urheberrecht und Datenschutzrecht. Ziel des Projekts ist es, diese Dissertationen nach Klärung urheber- und datenschutzrechtlicher Fragestellungen freizugeben und digital, auch im Kontext von KI und LLMs, für die wissenschaftliche Community nutzbar zu machen.

Weitere Informationen hier.

+++++++++++++++++++++++++++++++

Meanwhile, Cameroon prepares for presidential elections this Sunday. The Constitutional Council has confirmed that opposition leader Maurice Kamto will remain excluded from the race. LAURA-STELLA ENONCHONG (ENG) criticises the Council’s rigid formalism and explains what this means for Cameroon’s fragile democracy.

Bulgaria’s democracy also looks increasingly fragile. After the Sofia Court of Appeal upheld the pre-trial detention of Varna’s mayor, Blagomir Kotsev, the Supreme Judicial Council refused to enforce the six-month limit on Borislav Sarafov’s term as acting Prosecutor General. For BLAGA THAVARD (ENG), this is symptomatic of what she calls Bulgaria’s “crisis of legality”: the rule of law is reduced to form without substance, protecting no rights but serving instead as an instrument of institutional self-preservation and control.

Across the Atlantic, Americans are questioning the resilience of their own institutions. Last week saw yet another partial government shutdown after Congress failed to approve funding for the new fiscal year. To outsiders – and many Americans – this may seem baffling. But as ZACHARY S. PRICE (ENG) explains, shutdowns reflect the U.S. system of checks and balances and can, in theory, be seen as a sign of constitutional strength rather than weakness – though in practice, they also highlight how deep partisan divisions have made governing the United States ever more difficult.

The EU knows a thing or two about gridlock. Time and again, sanctions falter on Hungary’s veto. There’s no “shutdown” mechanism for that. So how can the EU overcome the Hungarian blockade – fully in the spirit of the Treaties, without resorting to legal fantasy? JOHANNES SCHÄFFER (ENG) proposes a simple, legally sound fix: reduce the Council decision to the minimum and decide the sanctions details by qualified majority vote.

Meanwhile, the European Parliament and the Commission are updating their Framework Agreement on interinstitutional relations – first adopted in 2005. ANDREW DUFF (ENG) outlines the main changes and considers what the new accord could mean for the Union’s political and legislative processes.

And finally, some good news: the Inter-American Court of Human Rights has recognised care as a human right and spelled out the corresponding duties of states. MIRIAM L. HENRÍQUEZ VIÑAS and SABRINA RAGONE (EN) explain what this right entails and what it requires state parties to do.

We’re not stopping at human care this week, though – we’re taking it interspecies and environmental by launching the “Defund Meat” symposium, edited by SASKIA STUCKI and ANNE PETERS and supported by the Max Planck Institute for Comparative Public Law and International Law. What might sound like radical rhetoric is, in fact, simple common sense, argues SASKIA STUCKI (EN): we should stop publicly funding an industry that has proved overwhelmingly harmful. PAOLA CAVALIERI (EN) argues that new radical oppositional thinking is needed to confront the animal-industrial complex. MARCO SPRINGMANN (EN) assesses the challenges of dietary changes and proposes multi-component approaches to address them. KRISTEN STILT (EN) explains how intensive animal production can threaten public health. ODILE AMMANN (EN) argues that meat lobbyists blur facts and shape norms. CLEO VERKUIJL (EN) outlines five lessons from fossil fuel governance for industrial meat governance. ANNE PETERS (EN) argues that, while agriculture has been routinely protected from trade liberalisation, such protectionism deserves to be strengthened when it comes to meat production for the sake of animal welfare. Although global meat governance currently faces significant political obstacles,  ANDRÉ NOLLKAEMPER (EN) sees early signs of change, such as the extension of the no-harm rule to climate change.

Extending the “no harm” rule seems a fittingly noble idea for Nobel week – perhaps even nobler than the prize itself. After all, peace, like freedom, is not a state to be achieved once and for all, but a practice we must live every single day.

*

That’s it for this week. Take care and all the best!

Yours,

the Verfassungsblog Team

If you would like to receive the weekly editorial as an e-mail, you can subscribe here.