Headnotes

to the Judgment of the First Senate of 16 October 1977

– 1 BvQ 5/77 –

The limits of constitutional review in cases of terrorist ransom demands with death threats

Pronounced

on 16 October 1977

FEDERAL CONSTITUTIONAL COURT

– 1 BvQ 5/77 –

In the proceedings

on the application by

the Federal Constitutional Court – First Senate –with the participation of Justices

President Dr. Benda

Dr. Böhmer

Dr. Simon

Dr. Faller

Dr. Hesse

Dr. Katzenstein

held on the basis of the oral hearing of 15 October 1977:

Judgment

1. The application for a preliminary injunction is rejected.

Reasons:

A.

1. The applicant was abducted by terrorists on 5 September 1977 and his escorts murdered. He has been held hostage ever since. The abductors have told the Federal Government and the Federal Criminal Police Office that the applicant’s release depends on specified demands being met, and if they are not met he will be “executed”. Their demands include the release of eleven named terrorists who are currently in prison on remand or serving sentences, and clear passage out of the Federal Republic of Germany for these persons.

The applicant’s legal representatives seek the following preliminary injunction:

The respondents are to comply with the demands of the abductors of Dr. Hanns-Martin Sch., namely releasing and granting clear passage out of the Federal Republic of Germany for the prisoners named by the abductors, as a necessary condition to avert the present impending danger to the applicant’s life.

By way of subsidiary application, they seek the following preliminary injunction:

The respondents are to refrain from refusing to release and grant clear passage out of the Federal Republic of Germany for the prisoners named by the abductors, as such release and clear passage is absolutely necessary to avert the present danger to the life and limb of the applicant, which cannot otherwise be averted.

They assert that:

It is incumbent on respondent no. 1 to take the political decision and bear responsibility for meeting or refusing to meet the abductors’ demands; as those with executive responsibility for the prisons and penal institutions holding the prisoners concerned, respondents nos. 2 to 5 bear the responsibility to carry out any such decisions.

[…]

2. The Federal Minister of Justice has submitted a statement on behalf of the Federal Government. […]

3. At the oral hearing in camera , Dr. Mailänder and Dr. Gerstenmaier, as legal counsel, submitted statements on behalf of the applicant. Dr. Vogel, Federal Minister of Justice, also submitted a statement on behalf of the Federal Government and the Government of North Rhine-Westphalia.

B.

The application for a preliminary injunction is admissible. It is true that a preliminary injunction may not prejudice the principal proceedings (cf. BVerfGE 3, 41 [43] and established case-law), and that the measures sought by the applicant come at least very close to such prejudice. However, this does not affect the admissibility of the application, since under the prevailing circumstances a decision in the principal proceedings may come too late (BVerfGE 34, 160 [163]). In cases of this kind, the application cannot be examined solely on the basis of a weighing of consequences, as would normally be required (cf. BVerfGE 12, 276 [279] and established case-law). Rather, the summary examination must take into account the likely outcome of the principal proceedings.

C.

The result of this examination is that the application cannot succeed.

I.

The state has a duty, deriving from Art. 2(2) first sentence in conjunction with Art. 1(1) second sentence of the Basic Law (Grundgesetz – GG) to protect every human life. This duty of protection is comprehensive. It requires the state to protect and nurture each life, an obligation which includes, above all, safeguarding it from unlawful interference by third parties (BVerfGE 39, 1 [42]). All state organs must be guided by this imperative as befits their particular functions. Since human life is of paramount value, this duty of protection must be taken particularly seriously.

II.

The state organs are, as a matter of principle, responsible themselves for determining how to fulfil their duty to effectively protect life. They decide what protective measures are to the purpose and necessary to ensure that life is effectively protected (BVerfGE, loc. cit., p. 44). Their discretion to choose how to protect life may, in some specific cases, be constrained to only one given means if it is not possible to effectively protect life any other way. Although the applicant quite understandably thinks otherwise, the present case does not fall into this category.

The particularity of the protection against terrorist ransom demands with death threats is the need to adapt the necessary measures to a wealth of singular situations. General norms governing such measures cannot be laid down in advance, nor can norms be derived from an individual fundamental right. The Basic Law not only gives rise to a duty to protect individuals, but also to protect all citizens as a group. To discharge this duty effectively, the competent state organs must be in a position to respond appropriately to the circumstances of the specific case; this alone precludes any advance determination of the means available. Furthermore, such determination cannot be made under constitutional law, because it would mean, in particular, that terrorists would be able to predict the state’s response. That would make it impossible for the state to protect its citizens. This would be an irresolvable obstacle to the task entrusted to it under Art. 2(2) first sentence GG.

For the same reasons, the general guarantee of the right to equality (Art. 3(1) GG) cannot impose a requirement to take schematically uniform decisions in all abduction cases.

In view of this constitutional framework, the Federal Constitutional Court cannot prescribe a specific course of action for the competent state organs. It is up to the respondent to decide what measures are to be taken to fulfil the duties of protection incumbent on it.