Germany, Federal Constitutional Court, 8 May 2017 2 BvR 157/17

Identification of the case

• Right to life (art. 2 CFREU)
• Prohibition of torture and inhuman or degrading treatment or punishment (art. 4 CFREU)
• Right to an effective remedy and to a fair trial (art. 47 CFREU)

• Effective Judicial Protection, Article 19(4) Basic Law
• Right to life and physical integrity, Article 2(2) Basic Law

• Article 34 Qualification Directive

Summary of the case

The applicant is a Syrian national who applied for asylum in Germany on 2 December 2015. Before coming to Germany, Greece had recognized international protection for the applicant. In a personal interview with the Federal Agency of Migration and Refugees (Federal Agency) the applicant stated that he had lived in the street in Greece and had not received any support by the Greek state. The Federal Agency rejected the applicant’s request as inadmissible, since Greece had recognized international protection. The humanitarian situation in Greece would not establish a violation of the applicant’s rights according to Article 3 ECHR. The applicant brought an action against the Federal Agency’s decision before the Administrative Court Minden and asked for suspensive effect. The Administrative Court dismissed his claim. The Federal Constitutional Court repealed the decision of the Administrative Court and referred it back.

• Administrative judicial enforcement

Annulment of the administrative decision, suspensive effect of the appeal.

The Federal Constitutional Court held that the decision of the Administrative Court Minden violated the applicant’s fundamental right to an effective remedy before a court. The effectiveness of a judicial remedy is determined by the fundamental right that is allegedly violated. The requirements for adequate fact-finding of the court have to be adequate to the role and importance of these fundamental rights. The Administrative Court had not examined the facts in a manner adequate to the fundamental rights to life and physical integrity and the prohibition of inhuman or degrading treatment or punishment. It had alleged that the situation of the applicant as a person that had been granted international protection was different from the situation of a person applying for asylum because of the duty to treat people who have been granted international protection in the same way as nationals. The Administrative Court had the duty to examine the applicant’s allegation that people who have been granted international protection in Greece do not even have access to the support that is given to people are subject to international protection proceedings, but whose claim has not yet been decided upon. Furthermore, the Administrative Court had not considered that the access to integration facilities provided for by Article 34 Qualification Directive is not offered.

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

The Federal Constitutional Court held that the opponent’s right to an effective judicial remedy was violated because the court of first instance did not sufficiently examine the facts concerning the opponent’s situation in Greece. The Administrative Court had not established that the support granted by the Greek state to a person that had been granted international protection is sufficient to not violate Article 3 ECHR.

• Effectiveness

The effectiveness of a judicial remedy is determined by the fundamental right that is allegedly violated. The requirements for adequate fact-finding of the court have to be adequate to the role and importance of these fundamental rights. The Administrative Court had not examined the facts in a manner adequate with the fundamental rights to life and physical integrity and the prohibition of inhuman or degrading treatment or punishment.

Elements of judicial dialogue

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

The court of first instance has to reexamine the case.

Additional notes on the decision