Headnotes (non-official):

1. Under the Basic Law, participants in judicial proceedings have the right to appear before an independent and impartial judge who is bound to maintain neutrality and detachment vis-à-vis all parties to the proceedings and vis-à-vis the subject matter of the proceedings. The terms “judge” and “court” are inextricably linked with the notion of neutral conduct of office.

2. The right to one’s lawful judge under the second sentence of Article 101.1 of the Basic Law thus guarantees a right to the selection of a competent judge based on the relevant legal framework. It also ensures that the person concerned does not appear before a judge who lacks the requisite impartiality. The requirement that a judge be impartial and neutral is also based on the rule of law.

3. Only if arbitrary considerations were decisive in determining the competent judge or if this determination was based on a fundamental misunderstanding of the meaning and scope of the second sentence of Article 101.1 of the Basic Law would the right to one’s lawful judge be violated under this provision. This also applies where the challenge of a judge on the grounds of possible bias is dismissed due to the incorrect application of ordinary law.

Summary:

I.

The applicant is an Afghan national. In March 2017, the Federal Office for Migration and Refugees (hereinafter, Federal Office) rejected his asylum application of September 2016. In the court proceedings initiated against this rejection, the applicant challenged the competent judge on the grounds of bias. In order to substantiate the challenge, the applicant referred to a judgment in which the challenged judge had granted the extreme right-wing party NPD relief against the removal of an election poster bearing the slogan “Stop the invasion – migration kills! Resist now”.

In his judgment, the challenged judge had found that the order requiring the poster to be removed was unlawful due to a procedural error. Subsequent passages of the judgment read as follows: “In light of the foregoing, the expression ‘Migration kills’ on the incriminated election poster does not amount to the offence of incitement, but must be regarded as reflecting reality to some extent. Indeed, the flow of migration to Germany since 2014/2015 has led to changes within society that have caused people to die and are capable in the long term of causing the death of the free democratic basic order. [...] This very court is aware of cases in which asylum seekers have become murderers.”

The Administrative Court rejected the applicant’s challenge by way of a chamber decision reached without the involvement of the challenged judge. With the challenged judge adjudicating as a single judge, the Administrative Court then rejected parts of the Federal Office’s decision issued against the applicant and ordered the Federal Office to grant subsidiary protection status to the applicant; in all other respects, the judge dismissed the action. To the extent that the action was dismissed, appeal admission proceedings are pending before the competent Administrative Court.

The applicant claimed a violation of the second sentence of Article 101.1 of the Basic Law, asserting that the Administrative Court had violated his right to his lawful judge because it had wrongfully rejected his challenge of the judge.

 II.

 Based on the considerations below, the Federal Constitutional Court held that the Administrative Court’s decision violates the right to one’s lawful judge laid down in the second sentence of Article 101.1 of the Basic Law.

The applicant’s challenge of the judge does not constitute a criticism of the judge’s legal opinion, nor does it involve answering the legal question of whether the slogan used by the NPD amounts to the offence of incitement. Rather, it takes the judge’s statements on migration as the reason for challenging him.

The rejection of the challenge is arbitrary. The Administrative Court denied that the challenged judge’s impartiality could be doubted on the basis of the judgment referenced in the applicant’s challenge. This is untenable in light of the fact that the judgment includes an extensive historical justification of the assertion that migration “by its very nature poses a danger to cultural values” wherever it takes place, along with the remark that the “danger to German culture, legal order and human life” cannot be “dismissed out of hand”. It is particularly untenable in light of passages in the judgment’s reasoning in which the judge considers the expression “migration kills” to be an empirically verifiable fact and where the judge refers to individual cases of asylum seekers being subsequently convicted of murder, other homicides or other serious crimes. The judge takes these individual cases as proof that migration is somehow linked to death and contempt for humanity and that migrants in Germany are capable of killing. With this interpretation of historical processes and the current political situation, the judge narrows down the broader concept of migration to the group of asylum seekers and portrays members of this group who later commit serious criminal offences as defining the entire field of migration. The judgment clearly shows that the judge who drafted it considers migration to be an evil force threatening the future of our society.

These and numerous other passages were manifestly capable of causing the applicant to doubt the challenged judge’s impartiality. This conclusion is not altered by the fact that the Administrative Court, represented by the challenged judge, partially granted the relief sought by the applicant’s action.

ECLI:DE:BVerfG:2021:rk20210701.2bvr089020

Please note that only the German version is authoritative. Translations are generally abriged.