Germany, Federal Constitutional Court, 29 August 2017 2 BvR 351/17, 2 BvR 585/17, 2 BvR 594/17, 2 BvR 595/17, 2 BvR 596/17, 2 BvR 601/17, 2 BvR 630/17, 2 BvR 685/17, 2 BvR 778/17

Identification of the case

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

• Articles 3 and 19(4) Basic Law (Grundgesetz)
• Paragraph 3 Asylum Code

Summary of the case

The applicants are Syrian nationals who requested asylum in Germany. The Federal Agency of Migration and Refugees (Federal Agency) recognized subsidiary protection for the applicants and rejected the requests with regard to asylum and refugee status. The applicants brought actions against the Federal Agency’s decision before the Administrative Court of Hamburg and asked for legal aid, inter alia holding that they would be in danger of political persecution upon return to Syria due to the fact that they had applied for asylum abroad. The Administrative Court dismissed their claims for legal aid, holding that the main proceedings lacked prospect of success. The Administrative Court stated that it followed the jurisdiction of most Higher Administrative Courts, which held that the mere fact of applying for asylum abroad would not suffice to establish a threat of political persecution. There would be no proof that all emigrated Syrian nationals would be considered as political opponents by the regime. The Federal Constitutional Court repealed the decisions of the Administrative Court and referred them back.

• Other

The decisions of the Administrative Court Hamburg were repealed and referred back.

The Federal Constitutional Court held that the decisions of the Administrative Court Hamburg violated the applicants’ fundamental rights to an equal and effective remedy before a court. The right to an equal and effective remedy before a court calls for the furthest possible approximation in the realization of legal remedies for people who are well-off and those who are less well-off. In general, this does not mean that legal aid cannot be made conditional upon the prospect for success of the main proceedings. However, the courts must not make excessive demands to the prospect of success, which frustrate the aim of providing equal access to legal remedy. This is the case if the court in the legal aid proceeding decides a difficult question that has not previously been decided by the court of appeal. In the present case, the Higher Administrative Court of Hamburg (Court of Appeal) had not yet decided upon the question whether refugee status has to be recognized for Syrian nationals because they would be considered as political opponents upon their return to Syria and therefore face a threat of political persecution. This question is decided very differently both by the courts of first instance and some Higher Administrative Courts. Therefore, the question decided upon by the Administrative Court Hamburg could neither be considered a “simple” question nor one that had been clarified by the Court(s) of Appeal. Thus, denying legal aid in this case would put a person who is less well-off in a less favorable situation than a person who is better off, because it denies him the possibility to make his legal standpoint clear in an oral hearing and in the second instance.

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

The Federal Constitutional Court did not refer to the Charter.

• Right to an effective remedy before a tribunal

Articles 3 and 19(4) Basic Law (Grundgesetz)

Art. 13 ECHR or functionally equivalent rights, even though the ECHR articles were not cited.

• Effectiveness

Elements of judicial dialogue

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

The court of first instance had to reexamine the case.

Additional notes on the decision

The Administrative Court of Schwerin in its decision of 9 November 2017 (ECLI:DE:VGSCHWE:2017:1113.3A871.17.00) held that the question whether a minor who had left Syria legally would be subject to a threat of political persecution upon return to Syria because he would be considered a political opponent, was no “difficult” question in the sense of the decision of the Federal Constitutional Court, even though the Court of Appeal had not yet decided upon this question. The Administrative Court held that the applicant was not able to form a political conviction due to his young age and that a threat of political persecution was accordingly denied by the courts of first and second instance. Thus, this question could be decided by the Administrative Court of Schwerin within the legal aid proceedings without a violation of the right to equal and effective legal remedy.

The Federal Constitutional Court decided similarly as in the cases presented here in its decision of 15 November 2017 (ECLI:DE:BVerfG:2017:rk20171115.2bvr090217) concerning decisions of the Administrative Court Schwerin of 6 April 2017 (16 A 2917/16 As SN), 20 March 2017 (3 A 856/16 As SN) and 3 July 2017 (3 A 2674/16 As SN).