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Germany / Federal Administrative Court / 1 A 4.17

Russian citizien v Federal state Bremen

Policy area:
Justice, freedom and security
Deciding Body type:
National Court/Tribunal
Deciding Body:
Federal Administrative Court
Type:
Decision
Decision date:
27/03/2018

Key facts of the case:

The plaintiff, a 19-years old Russian citizen, challenged a so-called deportation order (Abschiebungsanordnung) that was issued against him under section 58a of the Residence Act (Aufenthaltsgesetz). Arguing that the plaintiff had radicalised and was sympathising with the so-called „Islamic State“ the authorities found that he posed a terrorist threat. For this reason they ordered his deportation and prior detention in March 2017. The plaintiff’s claim for an interim injunction failed as well as the constitutional complaint against this decision and an application at the ECHR. The plaintiff argued that the deportation order was formally and substantively illegal as no prior hearing took place. Moreover, he saw himself being at risk of being arrested and tortured as well as being conscribed to military service. To clarify the question if a hearing was required under EU law, he argued, that a submission of the issue to the CJEU was necessary.

Key legal question raised by the Court:

The Federal Constitutional Court examined the question if the deportation order was issued formally correct or if the right to be heard was violated. In addition, the court raised the question if the plaintiff was at risk of being tortured or ill-treated in the sense of article 3 ECHR and article 4 of the EU Charter of Fundamental Rights by the security authorities of the target country when being deported to Russia. 

Outcome of the case:

The complaint was rejected by the Federal Administrative Court as ill-founded. The court decided that section 58a of the Residence Act as  legal basis of the deportation was in line with constitutional law. The issuance of the deportation order was found to be legal in formal terms: National law did not require a court hearing as an immediate decision was necessary in the public interest because of the terrorist threat posed by the plaintiff. Scheduling a hearing could have alerted the plaintiff with the result of evading the deportation.

A hearing was also not seen as necessary by the court under article 41 para. 2a of the EU Charter of Fundamental Rights as this is not relevant for the Member States but only the institutions and bodies of the EU. Moreover, the court denied the plaintiff’s claim for an effective remedy and an independent court according to articles 47 and 48 of the Charter and, thus, decided that submitting the issue to the CJEU was not necessary.

The court also confirmed the deportation order in terms of substantive law. The threat assessment against the plaintiff was a fact-based prognosis according to which a temporal and objective risk was confirmed that he might commit or participate in a terrorist attack. According to the Federal Administrative Court non-refoulement was not relevant for the case: Though torture and ill-treatment was reported for the Caucasus region, in particular in the context of the fight against the „Islamic State“, the court saw safe alternatives in other regions of Russia where the plaintiff could settle down after his deportation.