I.

The complainant, who was born in 1955, was brought up in various homes from 1961 to 1967. Following this, he was forcibly placed in various institutions in the GDR until January 1972. In December 2006, the complainant filed an application with the Magdeburg Regional Court (Landgericht) for his rehabilitation with regard to his placement in children’s homes.

On the subject of rehabilitation, §§ 1 and 2 of the Act provide as follows:

§ 1
“(1) On application, the decision of a public German court in a criminal matter in the area named in Article 3 of the Unification Treaty, the area of the German Democratic Republic, in the period from 8 May 1945 to 2 October 1990, shall be declared unconstitutional and be annulled (rehabilitation), insofar as it is incompatible with essential principles of a free order under the rule of law, in particular because
1. the decision served political persecution; this is usually the case in convictions under the following provisions: ...or
2. the legal consequences ordered are grossly disproportionate to the act on which they are based...”

§ 2.
“(1) The provisions of this Act apply with the necessary modifications to a judicial or administrative decision made outside criminal proceedings which deprived a person of liberty. This includes without limitation committal to a psychiatric hospital where this was for political persecution or other inappropriate purposes.
(2) Life in conditions similar to arrest or forced labour in conditions similar to arrest is treated as equivalent to deprivation of liberty.”

The Magdeburg Regional Court rejected his application as, among other reasons, the court considered its local jurisdiction to be uncertain. In addition, the court held that deprivation of liberty under § 2 of the Act did not normally apply in the case of children’s homes and other youth welfare institutions of the GDR with no punitive element.

Apart from this, the court held that, considering the state of pedagogical research in the year 1961, it was not apparent that placement in a children’s home was incompatible with essential principles of a free order under the rule of law. There were no indications of political persecution. The complainant’s complaint against the court’s order was dismissed by the Naumburg Higher Regional Court (Oberlandesgericht). Following this, the complainant filed a constitutional complaint against the order of the Naumburg Higher Regional Court. He claims a violation of his human dignity under Article 1 of the Basic Law, of his right of personality under Article 2 of the Basic Law and of the principle of equality under Article 3 of the Basic Law with regard to the treatment he received in the various homes.

The constitutional complaint is directed against the rejection of an application for rehabilitation on account of the placement in children’s homes and other institutions in the GDR.

II.

The Second Chamber of the Second Panel of the Federal Constitutional Court reversed the order and remanded the matter to the Naumburg Higher Regional Court for a new trial. The court decision violates the complainant’s fundamental right under Article 3(1) of the Basic Law insofar as it prohibits arbitrary decisions. The Higher Regional Court has a very narrow interpretation, holding the view that only measures that were occasioned by an act relevant to criminal law could be rehabilitated under the Rehabilitation Act, which is part of criminal law. This interpretation of § 2 of the Act does not satisfy constitutional requirements and is contrary to its meaning. As regards the requirement of incompatibility with essential principles of a free order under the rule of law in § 1(1) of the Act, this interpretation, which goes beyond the wording of the Act, leads to an impermissible restriction of rehabilitation to cases based on an act which the judicial system of the GDR classified as relevant to criminal law. This interpretation defeats the intention of the legislature to make rehabilitation possible even if deprivation of liberty was not a result of criminal proceedings and committals to psychiatric hospitals. In this way, the area of application of the Act is narrowed in a manner that is indefensible and contrary to the intention of the legislature. This is a significant misinterpretation of the contents of the Act, which is based on inappropriate and therefore arbitrary considerations.