Germany, Federal Constitutional Court, 14 November 2016 2 BvR 31/14

Identification of the case

• Article 19(4) Basic Law (Grundgesetz)

Summary of the case

The applicant is a Syrian national who applied for asylum in Germany. The Federal Agency of Migration and Refugees (Federal Agency) denied her application on 28 March 2013 and recognized a national ban on deportation. Upon return to Syria, the applicant would most likely be interviewed and run a real risk of being subject to a treatment contrary to human rights or even to torture. The applicant brought an action against this decision before the Administrative Court Düsseldorf, invoking decisions of the Sachsen-Anhalt and Baden-Württemberg Higher Administrative Courts that had recognized refugee protection based on the real risk of torture or inhumane interviews upon return. The Administrative Court dismissed the claim. The North Rhine-Westphalia Higher Administrative Court as appellate court refused leave to appeal, denying an outstanding question of law.

• Other

Annulment of the administrative decision, granting of refugee protection.

The Federal Constitutional Court held that refusing the leave to appeal violated the applicant’s right to effective judicial protection granted under Article 19(4) Basic Law. If the legislator provides for various judicial instances, access to the higher instance must not be rendered unreasonably difficult. The requirements as to the explanation of grounds for the leave to appeal must not be rendered excessively difficult so as to impede the applicant to access the next instance of judicial review. The ground for appeal of “fundamental legal importance” is fulfilled, if a (federal) legal question is judged diversely by different Higher Courts and there is no clarification of the Federal Court. In the present case, there were divergent judgments concerning the questions whether Syrians returning to their country of origin would be entitled to international protection since they would generally face a real risk of torture or inhumane treatment, or whether this would only hold for politically active Syrian nationals.

Role of the Charter and role of the general principles on enforcement

• Right to an effective remedy before a tribunal

• Effectiveness

Elements of judicial dialogue

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

Additional notes on the decision