Germany, Federal Constitutional Court, 11 April 2017 2 BvR 809/17

Identification of the case

• Right to an effective remedy and to a fair trial (art. 47 CFREU)

• Article 19(4) Basic Law, Right to effective judicial remedy

Summary of the case

The applicant is an Albanian national whose application for asylum was denied by the Federal Agency of Migration and Refugees as “manifestly unfound” on 13 November 2015. His subsequent claim was denied by the Administrative Court Gießen. His renewed application was denied by the Federal Agency on the ground that the applicant had only stated reasons he had already referred to in his first application, namely his homosexuality and the persecution based on his sexual orientation. His new submission of being recognizable as transsexual would not constitute new facts justifying a re-opening of the proceeding. The Administrative Court Gießen denied the applicant’s claim to not authorize his deportation to Albania, holding that the applicant did not need judicial protection since the immigration authority had declared not to execute the deportation within the same month. Furthermore, the claim would aim at an anticipation of the main proceedings.

Claim to not authorize deportation.

The Federal Constitutional Court suspended the deportation of the applicant for the time until a decision about his constitutional complaint. It held that the constitutional complaint was neither obviously founded nor obviously unfounded. The applicant had provided plausible reasons for a violation of his right to effective judicial protection under Article 19(4) Basic Law. The reasoning of the Court, the applicant did not need judicial protection since the immigration authority had declared not to execute the deportation within the same month would result in the applicant’s duty to reiterate his claim continuously as he would not be informed about the date of his planned deportation. Invoking the prohibition of an anticipation of the main proceedings would make it impossible to obtain a decision on interim measures against a deportation. The balancing of the interests at stake justified suspending the deportation since the applicant ran the risk of being deported before obtaining a decision on his claim.

Elements of judicial dialogue

• Dialogue between high court - lower instance court at national level

Additional notes on the decision