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| The following abstract was prepared by the Federal Constitutional Court and submitted for publication to the CODICES database maintained by the Venice Commission. Abstracts published by the Venice Commission summarise the facts of the case and key legal considerations of the decision. For further information, please consult the CODICES database. | |
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| Please cite the abstract as follows: | |
| Abstract of the Federal Constitutional Court’s Order of 18 November 2020 - 2 BvR 477/17 [CODICES] | |
Second Chamber of the Second Senate Order of 18 November 2020 2 BvR 477/17 | |
1. In principle, it is only the injured party’s home country – as the original subject of international law – that may assert a secondary-law claim against acts of another state that violate international law. There is no general rule of international law according to which individuals would be entitled to claim damages or compensation vis-à-vis the responsible state in the event of violations of international humanitarian law.
2. It cannot be ruled out that civil courts fail to fully recognise the significance and scope of Article 2.2 and Article 14.1 of the Basic Law when they generally deny liability for breach of official duty pursuant to § 839 of the Civil Code in conjunction with Article 34 of the Basic Law in the context of the deployment of German armed forces abroad.
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Summary: I.
On 3 September 2009, a group of Taliban fighters seized two fuel tankers in Kunduz. When the German colonel in charge received information about the hijacking of the tankers, he requested air support from two U.S. combat aircraft. He received repeated confirmation from an informant that only insurgents and no civilians were near the tankers. Thereupon, he gave the order to drop bombs, which destroyed both tankers and killed or injured numerous persons, including civilians.
The applicants are relatives of victims who were killed in the bombing. They brought an action against Germany and sought compensation for pain and suffering and damages. In its decision of 6 October 2016, the Federal Court of Justice rejected the applicants’ appeal on points of law. In particular, the court held that individuals cannot derive claims for damages from international law and that German law governing liability for breach of official duty pursuant to § 839 of the Civil Code in conjunction with Article 34 of the Basic Law does not apply to damage caused to foreign citizens in the context of an armed deployment of German armed forces abroad. Furthermore, the court held that there was no breach of official duty on the part of the colonel in charge.
The applicants challenged the dismissal by the civil courts, including the Federal Court of Justice, of their claims for breach of official duty. They assert the violation of their fundamental rights under the first sentence of Articles 2.2 and 14 of the Basic Law. Furthermore, they claim a violation of their right to be heard pursuant to Article 103.1 of the Basic Law as well as the guarantee of effective legal remedy pursuant to Article 19.4 or Article 20.3 of the Basic Law.
II.
Based on the considerations below, the Federal Constitutional Court did not admit the constitutional complaint for decision.
It was not objectionable under constitutional law that the Federal Court of Justice rejected the claims for compensation and damages that were based directly on international law. In particular, neither Article 3 of the Fourth Hague Convention nor Article 91 of the Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts of 8 June 1977 establish individual claims for damages or compensation in the event of violations of international humanitarian law.
It is also not objectionable under constitutional law for the Federal Court of Justice to reject claims based on interferences equivalent to expropriation and on special sacrifice in the interest of the common good. Both legal concepts were developed by courts in respect of everyday administrative actions; they are not applicable to war damage.
Given the fundamental duty of all German state authority to respect fundamental rights, which also applies to actions abroad, the decision of the Federal Court of Justice can be called into question in this respect. Liability for state actions is not only a manifestation of the principle of legality, but also an impact of the fundamental rights affected by the respective measure. Fundamental rights protect against unjustified state interference with the freedom and equality of individuals. To secure the integrity of fundamental rights, claims for injunctive relief or removal can also be based thereon. Where this is not possible, claims for compensation can derive from fundamental rights and are therefore not only a question of statutory law. Today, this can be regarded as a general principle in European law.
However, it is not objectionable under constitutional law that the Federal Court of Justice did not find a breach of official duty by the colonel in charge. Its assessment is comprehensible and not arbitrary and therefore does not violate Article 3.1 of the Basic Law.
Whether German soldiers breach their official duty in an armed conflict is determined by the Constitution, the Federal Act on Soldiers and the rules of international humanitarian law. In this respect, not every killing of a civilian in the course of armed conflict constitutes an unlawful violation. In its decision, the Federal Court of Justice found no such violation given that the colonel in charge had no reason to assume that civilians were present in the targeted area, as he had exhausted available sources of information at the time he ordered the air strike. This decision was taken ex ante, based on a valid prognosis, and consequently not in breach of an official duty.
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