On 29 August 2017, the 1st chamber of the 2nd court panel of the Federal Constitutional Court decided unanimously in several cases that denying legal aid for lawsuits brought forward by asylum seekers from Syria is not compatible with the constitutionally protected right of having equal access to judicial review. The Federal Constitutional Court overturned the judgments from lower courts, which had denied the Syrian asylum seekers financial assistance from public funds for legal expenses associated with their cases, otherwise known as legal aid.
Facts of the cases:
The asylum seekers who filed actions appealing the decisions made by the Federal Office for Migration and Refugees (BAMF) are Syrian nationals who primarily have Kurdish or Arabian ethnicity. They entered the Federal Republic of Germany and applied for asylum in 2015 and 2016. BAMF rejected their asylum applications for full refugee protection status and instead granted the asylum seekers subsidiary protection instead, since they were not being persecuted when they left their country. The Syrian asylum seekers neither met one of the persecution criteria needed to qualify for refugee protection status, nor is one of the criteria ascribed to them by the Syrian regime.
The asylum seekers contested BAMF’s decision by filing actions at the Administrative Court of Hamburg. They wanted to be granted official refugee protection status and applied for authorisation of legal aid to cover the legal costs associated with their case. They argued in particular that Syrians who left the country, but weren’t being persecuted, face the threat of political persecution by the Syrian regime because they had submitted an asylum application in a western country. Moreover, they said they were against Assad’s regime and some of them were required to serve in the Syrian military. They also claimed that the Federal Office of Migration and Refugees usually granted official refugee protection status in these types of cases.
The Administrative Court refused to grant legal aid in each case because it believed the case had little chance of success. The single judge issuing the judgment agreed with the predominant point of view in established case law at the Higher Administrative Courts in several other German states, such as Schleswig-Holstein, Rhineland-Palatinate and Bavaria: Syrians who left their country, but were not being persecuted, do not face a threat of political persecution simply because they had applied for asylum in a foreign country. However, this standpoint is contrary to the position taken by the higher administrative courts in the German states of Hesse and Baden-Wuerttemberg.
The Federal Constitutional Court overruled the judgments issued by the administrative court which had denied legal aid to the Syrian asylum seekers.
Reasons for the Constitutional Court’s decision:
The right to having true and equal access to judicial review is derived from article 3, section 1 of the German Basic Law in conjunction with article 19, section 4 of the German Basic Law for judicial authority under public law. It demands far-reaching measures for harmonising the situation that people with and without the financial means have in terms of being able to have a judge review their cases. For this purpose, it is in principle constitutionally unobjectionable to make providing legal aid dependent on the intended assertion or defence of rights having reasonable prospects of being successful and not appearing baseless.
The non-constitutional courts, however, overstep their scope of decision-making power if they overstretch the requirements that a case must have a chance of being successful. This clearly defeats the purpose of legal aid, namely to give people with no financial means largely the same access to the courts for their case to be reviewed. An assessment of a case’s chances of success is not intended to bring up an assertion of a right or defence of a right in ancillary proceedings and to have it take the place of handling the issue in the principal proceedings. Legal aid, however, must not be granted if the main question being raised in the case still has not been clarified by the highest court, but its clarification does not appear to be ‘difficult’ in the previously-mentioned sense with respect to the relevant statutory regulation or the interpretation aids provided by established case law. When a non-constitutional court interprets section 114 paragraph 1 sentence 1 of the Code of Civil Procedure in a such way that the courts can make a final decision about the difficult legal questions that are still unanswered in case law, it is misinterpreting the meaning of an individual’s constitutionally protected right of having equal access to judicial review of their case. This is the case, because unlike people with the financial means, people who cannot afford to go to court would be deprived of the opportunity to present their legal position in the principal proceedings and then have their case be reviewed by a higher court.
When measured by these standards, the court decisions being contested clearly do not stand up to a review by the Federal Constitutional Court. The Administrative Court was misjudging the standard of review and was essentially making final decisions about difficult questions of fact in the judgments they issued on the authorisation of legal aid, although the Higher Administrative Court of Hamburg, which is responsible for appeals against judgments issued by the Administrative Court of Hamburg, still was unable to answer some fundamental questions. For example, the Higher Administrative Court of Hamburg has not made a final decision on the main question relevant to the cases: to what extent do Syrians who left their country, but were not being persecuted, face being tortured upon returning to their homeland during repatriation interviews, because the Syrian regime assumes they sympathize with the opposition. For this reason, the Syrian asylum seekers argue they should be given refugee protection status (Flüchtlingsschutz), which would give them the advantage of being able to reunify their family and of being issued a refugee ID card.
This question has also not been answered consistently in court decisions made by the administrative courts in other states in Germany; the courts were and still are coming to different conclusions about the Syrian regime torturing repatriates, and thus the type of protective status that asylum seekers from Syria should be given. Some Higher Administrative Courts, which the Administrative Court in Hamburg based its opinion on, have refused to grant refugee protection status to Syrians with these types of circumstances: these include the Higher Administrative Courts in the states of Bavaria, Rhineland-Palatinate and Schleswig-Holstein. On the other hand, there are Higher Administrative Courts in other German states, such as Hesse and Baden Wuerttemberg, which have not followed the same line of thinking. They have either awarded Syrians with similar circumstances refugee protection status or have recently readmitted appeals related to this issue. The decision-making practices in courts of first instance are also very inconsistent. Given this situation, the decisions being contested clearly fall short of the provisions set out in the constitution.
Due to the inconsistent court decisions handed down by the Higher Administrative Courts, the Administrative Court was neither able to assume that this was a matter concerning a relatively simple question, nor that the legal question had already been clarified by other higher administrative courts, since they are still in disagreement about the answer. In light of this, denying legal aid to people without financial means puts them at a clear disadvantage compared to people who can afford to take legal action, and it deprives them of the opportunity to present their legal standpoint to a judge during a court hearing and to lodge an appeal at a court of second instance. Carrying out proceedings at a court of first instance was also required in order to give the Higher Administrative Court of Hamburg the opportunity to deal with the relevant issues that significantly influence the decision. Only once there is a basis for establishing the facts, can it be determined whether or not there would still be an unresolved legal issue after the question of fact has been clarified, which first needs to be resolved by the Federal Administrative Court.
Lastly, it must be mentioned that the issue of awarding refugee protection status to Syrians who are required to complete compulsory military service is also likely to be a question of fact that is difficult to determine, especially when the factual findings have not yet been clarified by the respective higher administrative courts. An issue such as this cannot be decided for the first and last time in legal aid proceedings.
Translation from German into English by Rosa Foyle