Summary:

I.

The applicants are three foreign citizens. In the initial proceedings, the respective local courts ordered that the applicants be detained for the purpose of deportation or transfer. None of the applicants was represented by a lawyer. At the time he was taken into custody, the applicant in proceedings 2 BvR 656/20 declared that he wanted to notify an (unnamed) ‘friend’. The local court did not notify anyone and did not document its reasons for failing to do so. In his hearing, the applicant in proceedings 2 BvR 1816/22 asked that a named friend residing in Frankfurt be notified. The local court claimed that notification was impossible because it remained unclear which of the German cities named Frankfurt was meant, so that a clear identification of the named person was not guaranteed. The local court assumed that it was under no obligation to make further investigations. The applicant in proceedings 2 BvR 1210/23 was participating in a work shadowing programme at the rehabilitation clinic M. while awaiting his licence to practice as a doctor in Germany. In his hearing, he requested that the clinic be informed of his detention. The court refused to notify anyone, claiming that a legal entity did not qualify as a relative or a person enjoying the confidence of the detained applicant. In the court’s view, it would only have been obliged to notify an identifiable natural person.

After unsuccessfully exhausting all legal remedies, the applicants lodged constitutional complaints claiming that the local courts had violated Article 104.4 of the Basic Law by failing to notify a relative or a person enjoying their confidence.

II.

The Third Chamber of the Second Senate of the Federal Constitutional Court held that the courts’ failure to notify a person within the meaning of Article 104.4 of the Basic Law violated the applicants’ fundamental right under the same provision. Article 104.4 of the Basic Law is not only a provision of objective constitutional law that imposes an obligation on the judge; it also affords a person in custody an individual right guaranteeing that the provision will be observed. The fundamental right under Article 104.4 of the Basic Law requires courts that order detention for the purpose of deportation or transfer to notify a relative or a person enjoying the confidence of the person in custody. The provision is intended to prevent people in custody from disappearing without a trace.

Notification pursuant to Article 104.4 of the Basic Law is the responsibility of the judge who orders the detention or its continuation and must be given ex officio. In any event, the court may not refrain from a notification without first informing a detained person, who is not represented by a lawyer, of the notification requirement and asking what relative or other person the court could inform. The existence of close ties and a longstanding relationship of trust is not a requirement for a person to qualify as a person enjoying the confidence of the detainee within the meaning of Article 104.4 of the Basic Law. Rather, any person with whom the detained person has a personal or indirect relationship of trust at the time of notification and from whom they can expect support can qualify. The courts may not refrain from notifying someone merely because the detained person cannot spontaneously provide the full contact details of a person enjoying their confidence. It is generally reasonable to expect the court to obtain information from the residents’ registration office. If the person in custody merely names a legal entity such as their employer, it is possible for the court to notify a person entrusted with staff and work management within the named organisation.

The Federal Constitutional Court also emphasised that the guarantee of effective legal protection under Article 19.4 of the Basic Law may require courts to document their decisions and state reasons as a prerequisite for ensuring effective legal protection.

The ordinary courts’ failure to notify a person within the meaning of Article 104.4 of the Basic Law violated the applicants’ fundamental right under Article 104.4 of the Basic Law. The courts that heard and rejected the respective applications for declaratory relief perpetuated the violation of Article 104.4 of the Basic Law. However, the violation of Article 104.4 of the Basic Law does not affect the substantive decision on the order of detention or its lawfulness.