Judgment of 15 February 2006

Reasons:

A.

1

The constitutional complaint is directed against a provision in the Aviation Security Act authorising the armed forces to shoot down, by direct force of arms, aircraft intended to be used as a weapon to destroy human lives.

I.

2

1. On 11 September 2001, an international terrorist organisation hijacked and crashed four passenger aircraft operated by domestic airlines in the United States of America. Two of the planes hit the World Trade Center in New York, while one crashed into the Pentagon, the headquarters of the United States Department of Defense. The fourth plane crashed south-east of Pittsburgh (Pennsylvania), possibly after passengers on board intervened and forced a change of course. The attacks killed more than 3,000 people on board the planes, in and around the World Trade Center and in the Pentagon.

3

On 5 January 2003, an armed man hijacked a general aviation aircraft in Germany, circled above the banking district of Frankfurt/Main and threatened to crash into the high-rise headquarters of the European Central Bank unless he was granted a telephone call to the United States. A police helicopter and two fighter jets of the air force circled and monitored the aircraft. The police issued a high alert and the city centre of Frankfurt and high-rise buildings were evacuated. About half an hour after the hijacking began, it became clear that the hijacker was a confused individual acting alone. After his demands had been met, he landed at Rhein-Main Airport and did not resist arrest.

4

2. Both incidents triggered an array of measures that were aimed at preventing unlawful interference in civil aviation, improving the overall security of civil aviation and protecting against dangers arising from people taking control of an aircraft in order to misuse it for purposes unrelated to aviation ([…]).

5

a) On 16 December 2002, the European Parliament and the Council of the European Union adopted […] Regulation (EC) No. 2320/2002 establishing common rules in the field of civil aviation security […]. This Regulation provides for extensive aviation security measures at the airports located in the territories of the Member States of the European Community. These include the determination of national airport planning requirements, provisions regarding the surveillance of all airport areas accessible to the public, the searching of aircraft, screening of staff and items carried, the screening of passengers and their baggage as well as provisions regarding a national programme for the recruitment and training of flight crew and ground staff.

6

b) In the Federal Republic of Germany, practical and legal measures have been taken that serve to increase aviation security and provide protection from attacks on aviation.

7

aa) A National Air Security Centre has been established in Kalkar (Lower Rhine Region); it has been operational since 1 October 2003. […] Its main task is to avert dangers arising from so-called renegade aircraft – civil aircraft that have come under the control of people who seek to use them as weapons through targeted crashes. Once an aircraft has been categorised as a renegade aircraft – whether by NATO or the National Air Security Centre – the responsibility for the necessary countermeasures in German airspace lies with the responsible bodies of the Federal Republic of Germany.

8

bb) The legal basis for these measures is set out in the Act Revising Aviation Security Tasks of 11 January 2005 (Federal Law Gazette, Bundesgesetzblatt – BGBl I p. 78).

9

aaa) […] Art. 1 of the Act contains the core of the revisions: the Aviation Security Act (Luftsicherheitsgesetz – LuftSiG).

10

(1) According to its § 1, this Act serves to provide protection from attacks on aviation security, in particular aircraft hijackings, acts of sabotage and terrorist attacks. Pursuant to § 2 of the Act, aviation security authorities are tasked with defending against attacks on aviation security. § 3 of the Act provides that the authorities shall take the necessary measures to avert dangers to aviation security in the individual case, unless § 5 of the Aviation Security Act provides otherwise in terms of the authority’s powers.

11

§ 5 grants aviation security authorities extensive powers to screen and search persons and items for the purpose of securing areas of airports that are not generally accessible. […]

12

Pursuant to § 16(2) of the Act, the tasks of the aviation security authorities are in principle performed by the Länder (federal states) on federal commission. In contrast, the task of protection from attacks on aviation security pursuant to § 5 of the Aviation Security Act falls to the Federal Police under § 4 of the Federal Police Act (Bundespolizeigesetz) insofar as the conditions of § 16(3) second and third sentence of the Aviation Security Act are met. […] 

13

(2) Special Part 3 of the Aviation Security Act, which comprises §§ 13 to 15 of the Act, is headed ‘Support and administrative assistance by the armed forces’. Pursuant to § 13(1) of the Act, if a serious aviation incident has occurred that gives rise to the assumption, in the framework of public security, that a grave accident within the meaning Art. 35(2) second sentence and Art. 35(3) of the Basic Law (Grundgesetz – GG) is imminent, the armed forces can be deployed in the air space to support the police forces of the Länder to prevent such a grave accident if necessary to effectively avert the accident. In the case of a so-called regional disaster emergency pursuant to Art. 35(2) second sentence of the Basic Law, the Federal Minister of Defence or the member of the Federal Government authorised to deputise for the Minister (§ 13(2) of the Act) decides whether the armed forces will be deployed. In case of a supra-regional disaster emergency pursuant to Art. 35(3) of the Basic Law, the Federal Government decides in consultation with the affected Länder (§ 13(3) first sentence of the Act). If the Federal Government cannot make a timely decision, the Federal Minister of Defence or the member of the Federal Government authorised to deputise for the Minister decides in consultation with the Federal Minister of the Interior (§ 13(3) second sentence of the Act). Pursuant to § 13(4) second sentence of the Act, the support provided by the armed forces during the deployment is governed by the provisions of the Aviation Security Act.

14

§§ 14 and 15 of the Act determine the measures permissible in the context of deployment and the principles applicable to the selection of such measures. Pursuant to § 15(1) of the Act, measures to prevent a grave accident within the meaning of § 14(1) and (3) of the Act from occurring may only be taken after the aircraft that is the source of the danger has been monitored by the armed forces in the air space and they have unsuccessfully tried to warn and reroute it. If this condition is met, § 14(1) of the Act allows the armed forces to forcibly divert the aircraft, force it to land, threaten the use of force or fire warning shots. When choosing among these measures, the principle of proportionality must be observed (§ 14(2) of the Act). It is only when these measures cannot prevent a grave accident from occurring that § 14(3) of the Act allows the direct use of force against the aircraft. However, this provision only applies if, based on the circumstances of the case, it must be assumed that the aircraft is to be used to destroy human lives and the direct use of force is the only means to avert this present danger (gegenwärtige Gefahr). Pursuant to § 14(4) first sentence of the Act, ordering this measure falls within the exclusive competence of the Minister of Defence or the member of the Federal Government authorised to deputise for the Minister.

15

bbb) During the legislative process, in addition to concerns regarding the substantive constitutionality of § 14(3) of the Act, the main issue in dispute was whether §§ 13 to 15 of the Aviation Security Act are within the constitutional limits set by Art. 35(2) second sentence and Art. 35(3) of the Basic Law. […]

16

The differing assessment as to constitutionality was also reflected by the fact that both the Länder […] and the CDU/CSU parliamentary group in the Bundestag […] repeatedly submitted draft acts that provided for amendments to Art. 35 and Art. 87a of the Basic Law. Ultimately, however, the Basic Law was not amended  […].

17

ccc) […]

18-34

[…]

II.

35

With their constitutional complaint, the complainants directly challenge the Aviation Security Act, asserting that it allows the state to deliberately kill people who are not perpetrators, but rather victims of a crime. They claim that by authorising the shooting down of aircraft subject to the conditions set out in the Act, § 14(3) of the Aviation Security Act violates their rights following from Art. 1(1) and Art. 2(2) first sentence in conjunction with Art. 19(2) of the Basic Law.

36-43

[…]

III.

44

Written statements on the constitutional complaint were submitted by the German Bundestag, the Federal Government, the Bavarian Land Government, the Hessian Land Government, the German Bundeswehr Association (Deutscher BundeswehrVerband), Vereinigung Cockpit [an association of pilots] and the Independent Cabin Crew Organisation (Unabhängige Flugbegleiter Organisation – UFO).

45-70

[…]

IV.

71

In the oral hearing, the complainants, the German Bundestag, the Federal Government, the Bavarian Land Government, the Hessian Land Government, the German Bundeswehr Association and Vereinigung Cockpit and the Independent Cabin Crew Organisation further elaborated and added to their statements. In this context, the Federal Minister of the Interior and representatives of the parliamentary groups in the German Bundestag set out their partially divergent views regarding the scope of § 14(3) of the Act. Moreover, the Deutsche Flugsicherung [the German air navigation service provider] and the association of the crews of jet-powered fighter jets of the German Bundeswehr were heard on the challenged provisions and above all on questions regarding its application in practice.

B.

72

The constitutional complaint is admissible.

I.

73-74

[…]

II.

75

It is an admissible challenge that the complainants’ rights under Art. 1(1) and Art. 2(2) first sentence of the Basic Law may have been violated because § 14(3) of the Act authorises the armed forces, subject to the conditions set out therein and the other provisions in §§ 13 to 15 of the Act, to use force against an aircraft even if people are on board who have, against their will, come under the control of those who want to use the aircraft to destroy the lives of others.

76

1. […]

77

2. In particular, the complainants have standing to challenge this provision.

78

a) When a constitutional complaint directly challenges a law – as is the case here –, the complainants can only have standing if they are individually, presently and directly affected with regard to their fundamental rights (cf. Decisions of the Federal Constitutional Court, Entscheidungen des Bundesverfassungsgerichts – BVerfGE 1, 97 <101 ff.>; 109, 279 <305>; established case-law). In principle, complainants are presumed to be individually and presently affected if they demonstrate that their fundamental rights are likely affected by the measures based on the challenged provisions (cf. BVerfGE 100, 313 <354>; 109, 279 <307 f.>). Complainants are presumed to be directly affected if the challenged provisions effect changes to their legal position without requiring any further implementation measure (cf. BVerfGE 97, 157 <164>; 102, 197 <207>). This must also be assumed to be the case if the complainant cannot (reasonably) take action against a potential implementation measure (cf. BVerfGE 100, 313 <354>; 109, 279 <306 f.>).

79

b) Based on these standards, the complainants have standing. They plausibly demonstrated that they frequently use civil aircraft for private and professional purposes.

80

aa) It is therefore sufficiently likely that the challenged § 14(3) of the Act individually and presently affects them with regard to their fundamental rights. The direct use of force against an aircraft within the meaning of this provision would mean, as follows from a comparison with the measures set out in § 14(1) of the Act and the other measures listed in § 15(1) of the Act, action taken with the goal of causing the aircraft to crash if necessary.

81-82

[…]

83

bb) In light of this, the complainants are also directly affected. It is unreasonable to expect them to wait until they themselves become victims of a measure pursuant to § 14(3) of the Act.

C.

84

The constitutional complaint is well-founded. § 14(3) of the Aviation Security Act is incompatible with Art. 2(2) first sentence in conjunction with Art. 87a(2) and Art. 35(2) and (3) and in conjunction with Art. 1(1) of the Basic Law; it is declared void.

I.

85

Art. 2(2) first sentence of the Basic Law guarantees the right to life as a fundamental freedom (cf. BVerfGE 89, 120 <130>). This right protects the biological and physical existence of all human beings against state interference, from their creation until the time of death, regardless of the life circumstances of the individual or their physical and mental state. Each human life is equally valuable (cf. BVerfGE 39, 1 <59>). Although it represents one of the highest values within the constitutional order (cf. BVerfGE 39, 1 <42>; 46, 160 <164>; 49, 24 <53>), the right to life is also subject to a limitation clause under Art. 2(2) third sentence of the Basic Law. Thus, an interference with the fundamental right to life is possible on the basis of a formal act of Parliament (cf. BVerfGE 22, 180 <219>). Such an act of Parliament must adhere to the requirements of the Basic Law in all respects. It must have been enacted in accordance with the order of competences, it may not affect the essence of the fundamental right under Art. 19(2) of the Basic Law, and it may not run counter to the fundamental decisions reflected in the Constitution in any other respect.

II.

86

The challenged § 14(3) of the Aviation Security Act does not meet these standards.

87

1. For the crew and the passengers of an aircraft affected by a measure taken pursuant to § 14(3) of the Act, as well as those persons who intend to use the aircraft to destroy human lives within the meaning of the provision, § 14(3) of the Act interferes with the fundamental right to life protected by Art. 2(2) first sentence of the Basic Law. The exercise of the authorisation to directly use force against an aircraft pursuant to § 14(3) of the Act would lead to a crash of the aircraft in virtually all cases. Such a crash would in all probability lead to the death – i.e. the destruction of the lives – of all persons on board.

88

2. This interference cannot be justified under constitutional law. Formally, § 14(3) of the Act cannot be based on any legislative competence of the Federation (see a) below). Substantively, too, the provision violates Art. 2(2) first sentence of the Basic Law insofar as it does not just affect those who seek to use the aircraft as a weapon, but also persons who are not responsible for causing the serious aviation incident that is a prerequisite for applying § 14(3) of the Act (see b) below).

89

a) The Federation does not have legislative competence for the challenged provision.

90-91

aa) […]

92

bb) § 14(3) of the Act is not covered by the Federation’s competences because the provision is incompatible with the Basic Law’s requirements regarding the deployment of the armed forces.

93

aaa) […]

94

bbb) […]

95

ccc) […]

96-109

(1) [...]

110

(2) […]

111

(a) […]

112

(b) § 14(3) of the Act raises […] constitutional concerns because pursuant to § 13(3) of the Act, the deployment of the armed forces does not require a prior decision on deployment by the Federal Government in every case.

113

Art. 35(3) first sentence of the Basic Law expressly provides that only the Federal Government is authorised to deploy the armed forces in case of a supra-regional disaster emergency. Pursuant to Art. 62 of the Basic Law, the Federal Government consists of the Federal Chancellor and the Federal Ministers. It is a collegial body. Given that the Federal Government has exclusive competence to decide on the deployment of the armed forces for supra-regional disaster relief, Art. 35(3) first sentence of the Basic Law requires a decision by all members of the Federal Government (cf. – regarding Art. 80(1) first sentence of the Basic Law – BVerfGE 91, 148 <165 f.>). The decision-making competence of the entire Federal Government also serves to ensure that the interests of the Länder are taken into account to a greater extent; when the armed forces are deployed in their sphere of competence without a previous request by the affected Länder, their interests are considerably affected (cf. BVerfGE 26, 338 <397 f.>).

114

§ 13(3) of the Act only meets these requirements in its first sentence, according to which the decision on deployment of the armed forces under Art. 35(3) of the Basic Law is to be made by the Federal Government in consultation with the affected Länder. By contrast, the second and third sentence provide that the Federal Minister of Defence or the member of the Federal Government authorised to deputise for the Minister shall decide in consultation with the Federal Minister of the Interior if the Federal Government cannot make a timely decision; in that case, a decision by the Federal Government must then be obtained without undue delay – in the view of the legislator, this will be the standard case (cf. Bundestag document, Bundestagsdrucksache – BTDrucks 15/2361, p. 21 on § 13). Thus, when it comes to a decision regarding the deployment of the armed forces in case of a supra-regional emergency, it will be an individual minister who typically decides, rather than the Federal Government. In light of Art. 35(3) first sentence of the Basic Law, this cannot be justified by the special urgency of such decisions. Rather, the limited time within which decisions must generally be taken in the scope of § 13(3) of the Act clearly shows that measures of the type set out in § 14(3) of the Act can generally not be taken in the manner provided for by Art. 35(3) first sentence of the Basic Law.

115

(c) In addition, the constitutional limits regarding the deployment of the armed forces set by Art. 35(3) first sentence of the Basic Law are exceeded, as even in case of a supra-national disaster emergency, a deployment of the armed forces using military weaponry is not permitted under constitutional law.

116-117

[…]

118

b) § 14(3) of the Act is also incompatible with Art. 2(2) first sentence of the Basic Law in light of the guarantee of human dignity in Art. 1(1) of the Basic Law (see aa) below), insofar as it permits the armed forces to shoot down aircraft with people on board who are the victims of an attack on aviation security within the meaning of § 1 of the Act (see bb) below). Only insofar as a measure under § 14(3) of the Act is directed against an unmanned aircraft or against the persons responsible for such an attack does the provision not raise substantive constitutional concerns (see cc) below).

119

aa) Pursuant to Art. 2(2) third sentence of the Basic Law, the fundamental right to life guaranteed by Art. 2(2) first sentence of the Basic Law is subject to limitations (cf. also C I above). Yet a law providing for such limitations must be considered in light of this fundamental right and of the guarantee of human dignity in Art. 1(1) of the Basic Law, which is closely linked to the right to life. Human life is the vital basis of human dignity, which in turn is the supreme constitutive principle and the highest constitutional value of the Basic Law (cf. BVerfGE 39, 1 <42>; 72, 105 <115>; 109, 279 <311>). Every person possesses human dignity, regardless of their characteristics, physical or mental state, accomplishments or social status (cf. BVerfGE 87, 209 <228>; 96, 375 <399>). No one can be deprived of it. Merely the right to respect for one’s person (Achtungsanspruch) deriving from human dignity can be violated (cf. BVerfGE 87, 209 <228>). Human dignity is inviolable regardless of the expected duration of the individual’s life (cf. BVerfGE 30, 173 <194> regarding the right to respect for human dignity even after death).

120

In light of this relationship between the right to life and human dignity, the state is barred from taking measures interfering with the fundamental right to life that violate the prohibition to disregard human dignity. At the same time, the state is also obliged to protect each human life. This duty of protection requires the state and its organs to protect and defend the life of each individual, which includes safeguarding it from unlawful attacks and interference by third parties (cf. BVerfGE 39, 1 <42>; 46, 160 <164>; 56, 54 <73>). The duty of protection is rooted in Art. 1(1) second sentence of the Basic Law, which expressly requires the state to respect and protect human dignity (cf. BVerfGE 46, 160 <164>; 49, 89 <142>; 88, 203 <251>).

121

The specific meaning of this duty of protection for state action cannot be exhaustively determined for all cases (cf. BVerfGE 45, 187 <229>; 96, 375 <399 f.>). Art. 1(1) of the Basic Law does not just protect the individual from disparagement, stigmatisation, persecution, ostracism and similar acts by third parties or the state itself (cf. BVerfGE 1, 97 <104>; 107, 275 <284>; 109, 279 <312>). The constitutional legislator based human dignity on the notion that it is in the nature of human beings to be free to determine their own being and to develop and that the individual has a right to be respected, in principle, as a member of society with equal rights and inherent value (cf. BVerfGE 45, 187 <227 f.>). Therefore, the obligation to respect and protect human dignity generally precludes turning a person into a mere object of the state (cf. BVerfGE 27, 1 <6>; 45, 187 <228>; 96, 375 <399>). Thus, public authority is barred from treating the individual in a way that generally calls into question their quality as a conscious subject or their status as a legal subject (cf. BVerfGE 30, 1 <26>; 87, 209 <228>; 96, 375 <399>) by failing to respect the intrinsic value accorded to all human beings as such (cf. BVerfGE 30, 1 <26>; 109, 279 <312 f.>). Whether an act of public authority amounts to such treatment must be determined in the individual case in light of the specific situation that may give rise to conflicts (cf. BVerfGE 30, 1 <25>; 109, 279 <311>).

122

bb) Based on these standards, § 14(3) of the Act is also incompatible with Art. 2(2) first sentence in conjunction with Art. 1(1) of the Basic Law insofar as the shooting down of an aircraft affects persons who, as crew members or passengers, had no influence on the non-military aviation incident within the meaning of § 14(3) of the Act.

123

aaa) In the situation of these persons at the time when the direct use of force against an aircraft […] is ordered, it must be assumed pursuant to § 14(3) of the Act that the aircraft is to be used to destroy human lives. According to the explanatory memorandum to the law, the aircraft must have been repurposed as a weapon by those who have taken it under their control (cf. BTDrucks 15/2361, p. 20 regarding § 13(1) of the Act), it must be directly used as a weapon and not just as an aid to commit the offence against the lives (BTDrucks 15/2361, p. 21 regarding § 14(3) of the Act) of those who are in the area where the aircraft is to crash. In this extreme situation, which is also characterised by the confined space available on an aircraft in flight, passengers and crew are typically in a desperate situation. They can no longer control their life circumstances in a self-determined manner and independent of others.

124

This means that they are treated as objects, and not just by the perpetrators. When countermeasures are taken pursuant to § 14(3) of the Act in such a situation, the state also treats these people as mere objects in its rescue operation to protect others. The situation of the victims on board the aircraft is desperate and inescapable, including with regard to the order to shoot down the aircraft and its execution. The crew and passengers cannot avoid this state action due to circumstances which they cannot control in any way, but instead are defenceless and helpless in the face of such action, resulting in them being shot down together with the aircraft and consequently in them being, in all likelihood, killed. Such treatment disregards the status of affected persons as subjects who possess human dignity and inalienable rights. They are objectified and deprived of their rights, given that they are killed as a means to save others; by unilaterally deciding whether they will live, the state denies these people – who, as victims, also merit protection – their intrinsic value, which is accorded to all human beings as such. 

125

bbb) Moreover, given the circumstances, it cannot be expected that the situation can always be fully considered and correctly appraised at the time when […] a decision on whether to implement a measure pursuant to § 14(3) of the Act is made. It also cannot be ruled out that affected persons will behave in ways that might render the measure unnecessary. According to the findings obtained by the Court on the basis of the written statements submitted in these proceedings and the statements given in the oral hearing, it cannot be assumed that the factual prerequisites for the ordering and implementation of such measures can always be established with the necessary certainty.

126

(1) In particular, Vereinigung Cockpit has pointed out that even the mere finding that a serious aviation incident within the meaning of § 13(1) of the Act has occurred and poses the risk of a grave accident can be subject to great uncertainty, depending on the circumstances of the individual case. […]  

127

According to the organisation, the information that is to be obtained through investigation and monitoring measures pursuant to § 15(1) of the Act is vague at best, even in ideal weather conditions. In view of the dangers involved, interceptors can only approach a suspicious aircraft to a limited extent. The possibilities of assessing the situation and the events on board such an aircraft are therefore limited, even if visual contact is established – which is often difficult. Vereinigung Cockpit went on to say that, under these circumstances, the appraisal based on the facts ascertained regarding the motives and aims of the hijackers of an aircraft will generally remain speculative until the end. The danger […] therefore is that the order to shoot will be given too early and on the basis of uncertain facts […]. Put differently, reactions [to such incidents] would necessarily often be excessive.

128

(2) There were no indications during the proceedings that this assessment could be based on unrealistic and therefore incorrect assumptions. On the contrary, the Independent Cabin Crew Organisation (UFO) also plausibly stated that the decision to be taken by the Federal Minister of Defence or their deputy […] had to be made on the basis of largely uncertain information. Given the complicated and error-prone communication channels between cabin crew and the cockpit on an aircraft involved in an aviation incident, and between the cockpit and decision-makers on the ground, and given that the situation on board could change within minutes or even seconds, it is virtually impossible for those on the ground who must decide under extreme time pressure to reliably assess whether the prerequisites of § 14(3) of the Act are met. According to the organisation, the decision can therefore generally only be made on the basis of suspicions and not on the basis of reliable findings.

129

[…]  

130

ccc) Even though uncertain prognoses cannot be entirely avoided in the field of public security, it is inconceivable under Art. 1(1) of the Basic Law that innocent people in a hopeless situation – like the crew and passengers of a hijacked plane – could be deliberately killed on the basis of a statutory authorisation, especially when such uncertainties exist. There is no need to decide here how an order to shoot down an aircraft that was nevertheless made and carried out is to be assessed under criminal law ([…]). The only decisive aspect for the constitutional assessment is that the legislator may not authorise measures of the type set out in § 14(3) of the Act against uninvolved, innocent people by creating a statutory basis for such measures, nor may it thereby classify such measures as lawful and thus make them permissible. Such measures, which constitute deployments of the armed forces outside of a state of war, are incompatible with the right to life and the state’s duty to respect and protect human dignity.

131

(1) Contrary to what is occasionally argued, it cannot be assumed that persons boarding a plane as crew members or as passengers consent to its being shot down and thus to being killed if the plane becomes involved in an air incident […] that triggers a countermeasure pursuant to § 14(3) of the Act. Such an assumption lacks any realistic basis and is an entirely preposterous fiction.

132

(2) It is also argued that those who are on board a plane that […] is to be used to destroy the lives of other people are doomed anyway. However, this argument does not alter the fact that the measure taken on the basis of the challenged provision, which typically results in the killing of innocent people in a desperate situation, amounts to a violation of the right to dignity of these people. Each person’s life and human dignity are afforded the same constitutional protection regardless of the duration of their physical existence (cf. C I, II 2 b aa above). Anyone who contests this or calls it into question denies those who are in an emergency situation with no alternatives – like the victims of an aircraft hijacking – the respect that they are due in recognition of their dignity (cf. C II 2 b aa, bb, aaa above).

133

In addition, there are uncertainties regarding the circumstances. The uncertainties that generally arise when assessing the situation within the scope of application of §§ 13 to 15 of the Act […] necessarily also influence the prognosis of how long people on board an aircraft that has been repurposed as a weapon will have left and whether there is still a chance that they might be saved. It will therefore usually not be possible to reliably establish that the lives of these people ‘are doomed anyway’.

134

(3) A different assessment is also not merited by the assumption that people who are held on board an aircraft under the control of persons who want to use the aircraft […] as a weapon against human lives are themselves part of this weapon and must accept that they will be treated as such. This view reflects a blatant denial of the human quality of the victims of such an event, which are seen as part of a thing, and are thus objectified. It is irreconcilable with the Basic Law’s conception of human beings as beings with the inherent aspiration to be free to determine their own being (cf. BVerfGE 45, 187 <227>), who may therefore not be turned into mere objects of state action. 

135

(4) Nor can a different conclusion be drawn from the notion that the individual is obliged, if necessary, to sacrifice their life in the interest of society as a whole if this is the only way to protect the community and its legal order from attacks that are aimed at its collapse and destruction ([…]). The Court need not decide here if and, where applicable, under what circumstances such a solidarity-based obligation can be derived from the Basic Law, besides the protective mechanisms created through the constitutional emergency clauses. This is because § 14(3) of the Aviation Security Act does not concern the defence against attacks targeting the abolition of society and the destruction of the free and legal state order.

136

§§ 13 to 15 of the Act serve to prevent, in the context of public security, grave accidents within the meaning of Art. 35(2) second and third sentence of the Basic Law. According to the explanatory memorandum to the law, such incidents can be politically motivated, but they can also be caused by criminals without political intentions or by mentally unstable individuals (cf. BTDrucks 15/2361, p. 14). Even if they have political motives […], the actions undertaken are not aimed at calling into question the state or its continued existence. Under these circumstances, an obligation [to sacrifice one’s life] cannot be presumed to exist.

137

(5) Finally, § 14(3) of the Act cannot be justified with reference to the state’s duty of protection vis-à-vis those against whose lives the aircraft […] that has been repurposed as a weapon is to be used.

138

In fulfilling such duties of protection, the state and its organs are afforded a wide margin of assessment, appreciation and design (cf. BVerfGE 77, 170 <214>; 79, 174 <202>; 92, 26 <46>). In addition to their dimension as defensive rights of the individual, fundamental rights have an objective dimension that gives rise to state duties of protection, which are in principle indeterminate (cf. BVerfGE 96, 56 <64>). It is generally for the state organs to decide how they fulfil such duties of protection (cf. BVerfGE 46, 160 <164>; 96, 56 <64>). This also applies to the duty to protect human life. It is true that, especially with regard to this legal interest, the selection of the means used to fulfil the duty of protection can become so narrow that only one specific means may be used in special cases where it is not possible to effectively protect life in any other way (cf. BVerfGE 46, 160 <164 f.>). However, only means that are compatible with the Constitution can be used.

139

§ 14(3) of the Aviation Security Act does not meet these standards. In ordering the direct use of force against an aircraft, this provision disregards the fact that the victims on board the aircraft also have a right to have their lives protected by the state. The state not only denies them this protection, it also directly interferes with the lives of these vulnerable people. Thus, any action taken pursuant to § 14(3) of the Act denies the quality of these people as conscious subjects in a manner that is incompatible with Art. 1(1) of the Basic Law and disregards its resulting prohibition on the state from killing. This is not altered by the fact that such action serves to protect the lives of other people.

140

cc) By contrast, § 14(3) of the Act is compatible with Art. 2(2) first sentence in conjunction with Art. 1(1) of the Basic Law insofar as the direct use of force is directed against an unmanned aircraft or exclusively against persons who intend to use the aircraft as a weapon to destroy human lives on the ground.

141

aa) In such cases, the guarantee of human dignity under Art. 1(1) of the Basic Law does not preclude the ordering and implementation of measures pursuant to § 14(3) of the Act. This is immediately obvious for measures directed against unmanned aircraft, but it also applies to the other scenario. If someone unlawfully attacks the legal interests of others – as people who intend to use an aircraft as a weapon to destroy human lives do –, the state may defend itself against the unlawful attack and try to avert it to fulfil its duty of protection vis-à-vis the people whose lives are to be destroyed; such action does then not turn the attackers into mere objects of state action, nor does it generally call into question their quality as conscious subjects ([…]) On the contrary, it is in line with the quality as a conscious subject of the attacker that the consequences of their self-determined conduct are personally attributed to them and they are held accountable for the events they set in motion. The right to respect for human dignity – which they, too, possess – is therefore not adversely affected.

142

This is not changed by the uncertainties that may arise when assessing whether the prerequisites for ordering and implementing a measure pursuant to § 14(3) of the Act are met ([…]). In the cases discussed here, these uncertainties cannot be compared to those that have to be accepted if not only criminals, but also crew members and passengers, are on board the aircraft. If those who have taken control of the aircraft do not intend to use the aircraft as a weapon and the corresponding suspicion is thus unfounded, those individuals can, in the context of the preliminary measures carried out pursuant to § 15(1) and § 14(1) of the Act, such as the threat of the use of force or the firing of a warning shot, easily show that they do not pose any danger by cooperating [with the authorities], for example by turning away or landing the aircraft. Moreover, this situation is not characterised by the specific difficulties that might arise in communications between cabin crew possibly threatened by the attackers and the cockpit or between the cockpit and decision-makers on the ground. It is therefore more likely in this scenario that it will be possible to determine in a sufficiently reliable and timely manner that an aircraft is to be used as a weapon for a targeted crash.

143

If there are no indications that uninvolved people are on board a suspicious aircraft, the remaining uncertainties – such as the motives underlying the incident – relate to a course of events that was triggered by the actions of those against whom the countermeasure pursuant to § 14(3) of the Act is directed and who can avert it. Uncertainties arising therefrom must therefore be attributed to the sphere of responsibility of the offenders.

144

bbb) Insofar as § 14(3) of the Act is only applied vis-à-vis persons on board the aircraft who want to use the aircraft as a weapon to destroy human lives, the provision also satisfies the proportionality requirements.

145

(1) The provision’s aim is to save human lives. Given that human life is one of the highest values within the constitutional order under the Basic Law ([…]), this purpose is of such weight that it is capable of justifying the serious interference with the fundamental right to life of the perpetrators on board the aircraft.

146

(2) § 14(3) of the Act is not unsuitable for achieving this purpose because it cannot be ruled out that this purpose might be furthered in the individual case by a measure pursuant to § 14(3) of the Act (cf. BVerfGE 30, 292 <316>; 90, 145 <172>; 110, 141 <164>). Regardless of the uncertain assessments and prognoses described above ([…]), there may be situations in which it can be reliably established that only criminals involved in the aviation incident are on board the aircraft, and it can be assumed with sufficient certainty that a measure pursuant to § 14(3) of the Act will not adversely affect the lives of people on the ground. Whether such a situation exists must be assessed in the individual case.  […] It can therefore not be generally denied that the provision is suitable for the purpose pursued.

147

(3) In such a scenario, the provision is also necessary to achieve its aim, because it is not ascertainable that other equally effective means exist which would not impair the right to life of the perpetrators, or only do so to a lesser degree (cf. BVerfGE 30, 292 <316>; 90, 145 <172>; 110, 141 <164>).

148

The legislator enacted […] a range of measures that according to § 1 of the Act all serve to provide protection from attacks on aviation security, especially from aircraft hijackings, acts of sabotage and terrorist attacks […]. Nevertheless, the legislator considered it necessary to enact §§ 13 to 15 of the Act, which apply in the event that a grave accident within the meaning of Art. 35(2) second sentence or Art. 35(3) of the Basic Law is expected due to a serious aviation incident. These provisions set out special powers and protection measures, including an authorisation to directly use force against an aircraft as a last resort, subject to the prerequisites of § 14(3) of the Act. This is based on the non-rebuttable presumption, based on experience, that [the other measures] cannot provide absolute protection from a misuse of aircraft for criminal purposes. The same must also apply to other possible protection measures.

149

(4) The authorisation to directly use force against an aircraft which only has people on board who want to misuse it within the meaning of § 14(3) of the Act is also proportionate in the strict sense. Based on an overall balancing between the severity of interference and the weight of the legal interests to be protected (cf. in this regard BVerfGE 90, 145 <173>; 104, 337 <349>; 110, 141 <165>), shooting down such an aircraft constitutes an appropriate countermeasure that is reasonable for the persons concerned, provided that the statutory conditions are met. 

150

(a) That said, the interference is nevertheless serious because the implementation of a measure pursuant to § 14(3) of the Act almost certainly leads to the death of everyone on board the aircraft. However, in the constellation presumed here, it is these persons themselves who, as perpetrators, have brought about the necessity of state intervention; they could avert this action at any time by refraining from realising their criminal plan. Those who have control over the aircraft can not only largely determine what happens on board, but also on the ground. The possibility that they will be killed can only occur if it is clearly recognisable that they will use the aircraft controlled by them to kill others and if they stick with this plan even though they are aware of the danger to their own lives. This lowers the weight of the fundamental rights interference.

151

In addition, those in the target area of the planned crash, whose lives are to be protected by the measure to be taken pursuant to § 14(3) of the Act to fulfil the state duty of protection, typically do not have any possibility of averting the planned attack against them, such as by getting out of the way.

152

(b) However, it must also be taken into account that the application of § 14(3) of the Act can affect highly dangerous facilities on the ground, and can kill people in areas where debris from the aircraft shot down by force of arms might fall. The Constitution requires the state to protect the lives – and health – of these people, too. This must be taken into consideration when a decision pursuant to § 14(4) first sentence of the Act is made.

153

This aspect does not affect the legal validity of § 14(3) of the Act, but has implications for its application in the individual case. According to the statements given in these proceedings, the measures in question should not be taken when it must be expected with certainty that people on the ground will be harmed or even lose their lives because of falling aircraft debris in densely populated areas. With regard to the appropriateness of the challenged provision, it is sufficient to find that constellations might exist in which the direct use of force against an aircraft with only attackers on board can avert dangers to the lives of those against whom the aircraft is to be used as a weapon, without the shooting down of the aircraft threatening the lives of others. As set out above ([…]), this is the case here. Insofar as it allows the direct use of force against an unmanned aircraft or an aircraft with only attackers on board, § 14(3) of the Act is also proportionate in the strict sense.

154

ccc) The prohibition against encroaching on the essence of a fundamental right in Art. 19(2) of the Basic Law also does not preclude such a measure against the aforementioned group of persons. Given the highly exceptional situation in which § 14(3) of the Act applies, the essence of the fundamental right to life in the constellation under review here is not affected by the fundamental rights interference as long as important protected interests of others justify the interference and the principle of proportionality is observed (cf. BVerfGE 22, 180 <219 f.>; 109, 133 <156>). […]

III.

155

Given that the Federation did not have the legislative competence to enact § 14(3) of the Aviation Security Act, the provision is not valid, including insofar as the direct use of force against an aircraft could be justified under substantive constitutional law. The provision is unconstitutional in its entirety and is therefore void pursuant to § 95(3) first sentence of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz – BVerfGG). Under the given circumstances, there is no scope for a mere declaration of incompatibility of the challenged provision with the Basic Law. 

D.

156

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