Aviation Security Act

from Wikipedia, the free encyclopedia
Basic data
Title: Aviation Security Act
Abbreviation: LuftSiG
Type: Federal law
Scope: Federal Republic of Germany
Legal matter: Aviation law , security law
References : 96-14
Issued on: January 11, 2005
( BGBl. I p. 78 )
Entry into force on: January 15, 2005
Last change by: Art. 1 G of April 22, 2020
( Federal Law Gazette I p. 840 )
Effective date of the
last change: 		May 1, 2020
(Art. 9 G of April 22, 2020)
GESTA : B075
Weblink: Text of the LuftSiG
Please note the note on the applicable legal version.

The Aviation Security Act is a German federal law that aims to prevent aircraft hijackings , terrorist attacks on air traffic and acts of sabotage against it, thereby increasing aviation security .

On February 15, 2006 the Federal Constitutional Court ruled that Section 14 (3) Aviation Security Act violates the fundamental right to life ( Article 2 (2 ) Basic Law ) and human dignity ( Article 1 GG) and is therefore unconstitutional and null and void.

General

The Aviation Security Act was enacted on January 11, 2005 as Article 1 of the Act on the New Regulation of Aviation Security Tasks. It came into force on January 15, 2005.

The Aviation Security Act takes into account the provisions of Regulation (EC) 2320/2002 of the European Parliament and of the Council on the establishment of common rules for security in civil aviation of December 16, 2002, but primarily serves, according to the will of the legislature, to the powers and responsibilities for aviation security to be regulated more clearly and clearly than before. An express provision regarding administrative assistance by the armed forces was also desired . This regulation was largely classified as unconstitutional by the Federal Constitutional Court (see below for the judgment ).

The passage of the Aviation Security Act was accelerated by an incident in the airspace of Frankfurt am Main: On January 5, 2003, a mentally confused man circled over the skyscrapers of Frankfurt's banking district in a motor glider and threatened to crash his plane into one of the skyscrapers. With the little sailor, the pilot, who never had a valid pilot's license, would probably not have done much damage; the federal government nevertheless recognized the need for rapid action. In 2004 she put the law on the parliamentary route.

The main purpose of the Aviation Security Act is to prevent attacks such as the terrorist attacks on September 11, 2001 in the USA in Germany by "Renegades" . For this purpose, the law authorized and obliged the aviation security authorities , airlines and airport operators to take certain security measures.

The law allowed as a last resort measure a "direct use of armed force" against an aircraft, "when to go to the circumstances that the aircraft will be used against people's lives, and they [the measure] the only means of defense against these present danger ” (§ 14 Abs. 3 LuftSiG old version).

This “shooting authorization” also existed if there were uninvolved persons on board the aircraft, for example kidnapped passengers. The lives of bystanders on board should be sacrificed in favor of the lives of other people on the ground.

The Aviation Security Act was therefore politically, legally and ethically controversial.

Federal President Horst Köhler had the law examined by the lawyers of the Federal President's Office longer than usual. He had "serious doubts" that the law was compatible with the fundamentally guaranteed right to life. Despite his concerns, Köhler finally signed the Aviation Security Act, but at the same time suggested that the Federal Constitutional Court review it with regard to its constitutionality .

Regulations

The Aviation Security Act regulates the control of people and property in the airport or on the airfield ( Section 5 Aviation Security Act), specifies which persons are to be checked for reliability ( Section 7 Aviation Security Act) and stipulates which security measures the airport and airfield operators and the airlines have to take action ( § 8 and § 9 LuftSiG).

Control of people and cargo

Control at Berlin-Schönefeld Airport

The aviation security authority has special powers in the areas of the airport or airfield that are not generally accessible : They may search people who are in these areas or who want to enter them. In addition, the aviation security authority may screen and search baggage, search people and screen freight and mail ( Section 5 Aviation Security Act). The authority can either have the searches carried out by its own employees or commission third parties, for example the security staff at the airport, to carry out the search. The third person is then a so-called a loaned sovereign act.

Background checks

The background checks of officials at airports, airfields and airlines have been reorganized. Even flight interns, flight students and members of aviation clubs are checked by the aviation security authorities.

This does not apply to pilots who only have an microlight or glider license and student pilots who want to acquire these licenses. The above-mentioned “ private pilot ” would not have had to undergo a background check, even if the law had already applied in 2003, since he did not have a valid flight license.

Persons whose reliability has not been confirmed by an aviation security authority may only enter the areas of the airport that are not generally accessible if they have valid access authorization (valid flight ticket) and have completed the checks (search of the person and hand luggage), but none Take up work in the airport, on the airfield or on an airplane. The aircraft crew ( pilots and flight attendants ), the ground and security staff, cleaning staff and goods suppliers are subject to a reliability check ( Section 7 LuftSiG), and in fact cannot carry out their work without a positive background check . However, pilots with a foreign license are not affected.

For verification purposes, the aviation security authorities may obtain information from the police enforcement and constitutional protection authorities, the Federal Criminal Police Office , the Federal Office for the Protection of the Constitution , the Federal Intelligence Service , the military counterintelligence service , the Customs Criminal Police Office , the Federal Commissioner for the documents of the State Security Service of the former GDR and the Federal Central Register . When checking the background of foreigners , the aviation security authorities can also turn to the immigration authorities and the central register of foreigners . If there are doubts about the reliability of the person concerned in individual cases, the aviation security authority can obtain information from the public prosecutor's office .

From January 15, 2005 to November 10, 2006, approximately 513,400 background checks were carried out. In 1,520 cases, the reliability of the persons concerned was denied.

Prohibited items

Carrying prohibited items is a criminal offense under the Aviation Security Act.

Among the non-allowable items include all weapons of all kinds, in particular firearms , batons and thrust weapons , and also ammunition , explosives , flammable liquids and corrosive and flammable substances ( § 11 para. 1 of the Aviation Security).

It is also not permitted to carry “objects that, by their external shape or marking, give the appearance of weapons, ammunition or explosive substances” , for example toy pistols and laser pointers in the form of ammunition.

Also not permitted in the aircraft cabin are all items that are listed in the Annex to EC Regulation 820/2008 of August 8, 2008. These include, for example, baseball bats , tennis and badminton rackets , all kinds of knives , secateurs, stun guns , ice axes , hiking sticks , razors , scissors with long blades (over six centimeters), anthrax , smallpox viruses and mustard gas .

Anyone who carries one of these items in hand luggage or on their body and enters an aircraft or an airport area that is not generally accessible is a criminal offense . Not only deliberate or deliberate transport is punishable , but also negligent behavior. The penalty ranges from a fine to a two-year prison sentence ( Section 19 Aviation Security Act).

Payers

In accordance with Section 17 (2) of the Aviation Security Act, a statutory ordinance was issued that allows the costs incurred to be passed on indirectly to the passenger. The so-called aviation security fee is paid by the airlines. The current amount depending on the airport is published by the Federal Ministry of Transport, Building and Urban Development .

Change in the framework of the Anti-Terrorism Amendment Act

With Art. 9a of the Act to Supplement the Anti-Terrorism Act (Anti-Terrorism Supplementation Act) of January 5, 2007, the obligation to follow-up reports in accordance with Section 7 (9) of the Aviation Security Act was extended to state authorities. In addition to the federal authorities, the police enforcement and constitutional protection authorities as well as - in the case of foreigners - the immigration authorities have had to pass on information that is important for assessing the reliability of a person to the aviation security authority. This comprehensive follow-up reporting obligation had already been provided for in the original draft law, but was limited to federal authorities in the course of the legislative process in order to avoid the need for approval of the law by the Federal Council. After the federalism reform came into force, the Anti-Terrorism Supplementary Act remained without approval, even with the extended follow-up reporting requirements. Since there was no regulation of entry into force for Article 9a, this provision came into force 14 days after its publication in the Federal Law Gazette, i.e. on January 24, 2007, in accordance with Article 82 (2) sentence 2 of the Basic Law.

Legal discussion

Air Force Eurofighters are used as air defense alarms

The Aviation Security Act was legally controversial from the start.

Among other things, it was discussed whether the deployment of the Air Force as provided for by law is compatible with the Basic Law, which only provides for deployment of the Federal Armed Forces “inside” in the event of a disaster .

Irrespective of this, private pilots in particular resisted the extensive safety checks that they have had to undergo since the law came into force. They considered these measures to be disproportionate and therefore illegal. The airport operators said they had to carry out increased security checks on the ground.

The constitutional issues raised have largely been resolved today. However, in the opinion of the EU Commission, Section 7 of the Aviation Security Act in particular violates applicable EU law, which is why it set Germany a two-month deadline on July 16, 2015 to remedy this deficiency. Reason: "Member States are obliged to grant applicants who comply with Commission Regulation (EU) No. 1178/2011 a pilot's license without any further administrative or technical requirements", so that "these additional requirements are not included in the Regulation intended edition of German law is not compatible with EU law. "

Constitutional compliance of the Aviation Security Act

Unconstitutionality of § 14 Abs. 3 LuftSiG

The First Senate of the Federal Constitutional Court negotiated verbally on November 9, 2005 under the file number 1 BvR 357/05 on the constitutional complaints of six complainants, including the former Federal Minister of the Interior Gerhart Baum ( FDP ) and the former Interior Minister of North Rhine-Westphalia , Burkhard Hirsch (FDP ).

When questioned by the court, the then Federal Minister of the Interior, Otto Schily , stated that the law-based shooting down of commercial aircraft was practically out of the question in view of Germany's dense development. A launch is only conceivable in the event of attacks with small aircraft . This was denied by the other experts questioned, including the Inspector of the Air Force , Lieutenant General Klaus Peter Stieglitz .

In its judgment of February 15, 2006 , the First Senate declared the authorization for direct action with armed violence laid down in Section 14 (3) of the Aviation Security Act to be fully incompatible with the Basic Law and therefore void. According to the Federal Constitutional Court, unconstitutionality results from three points of view. On the one hand, the federal legislature lacks the competence to enact a law that allows the use of armed forces in Germany to combat natural disasters and particularly serious accidents with specifically military weapons. In addition, the shooting authorization violates the basic right to life ( Article 2, Paragraph 2, Sentence 1 of the Basic Law) and the guarantee of human dignity ( Article 1, Paragraph 1 of the Basic Law). The Federal Constitutional Court has expressly left the question of the criminal liability of a Bundeswehr pilot who shoots down a hijacked aircraft open.

The reasoning for the judgment states:

“The passengers and crew members exposed to such an operation find themselves in a hopeless situation. They can no longer influence their living conditions independently of others. This makes them the object not only of the perpetrator. Even the state which takes the defensive measure of Section 14 (3) in such a situation treats them as mere objects of its rescue operation to protect others. Such treatment disregards those affected as subjects with dignity and inalienable rights. By using their killing as a means to save others, they are reified and at the same time disenfranchised; as their lives are unilaterally disposed of by the state, the aircraft passengers, who themselves need protection as victims, are denied the value that people have for their own sake.

Under the validity of Article 1, Paragraph 1 of the Basic Law (guarantee of human dignity), it is absolutely inconceivable to deliberately kill innocent people who are in such a helpless situation on the basis of a legal authorization.

Even the assessment that those affected are doomed to die anyway cannot deprive the killing of innocent people in the situation described as a violation of the dignity of these people. Human life and human dignity enjoy the same constitutional protection regardless of the length of the physical existence of the individual. The partially held view that the people detained on board have become part of a weapon and should be treated as such, expresses almost blatantly that the victims of such an event are no longer perceived as human beings. The idea that in the interests of the state as a whole the individual is obliged, if necessary, to sacrifice his life if this is the only way to protect the legally constituted community from attacks aimed at its collapse and destruction, does not lead to any other result either. This is because the scope of Section 14 (3) does not deal with the defense against attacks aimed at the elimination of the community and the destruction of the state's legal order and freedom. Finally, Section 14 (3) cannot be justified by the state's duty of protection in favor of those against whose life the aircraft misused as a weapon is intended to be used.

Only those funds that are in accordance with the constitution may be used to fulfill state protection obligations. This is missing in the present case. "

Constitutional conformity of § 8

The Lower Saxony Higher Administrative Court , which was the first German court to deal with the Aviation Security Act, certified at least Section 8 of the Aviation Security Act, which regulates the security measures of the airport operators, to be constitutional. It therefore refrained from submitting a proposal to the Federal Constitutional Court.

Constitutional compliance of the background check according to § 7

The Federal Constitutional Court declared the background check required under Section 7 of the Aviation Security Act to be constitutional. With a decision of May 4, 2010, it responded to two submissions from the Darmstadt Administrative Court of June 27, 2007 in the procedure for the specific control of norms according to Art . The Federal Constitutional Court did not share the doubts about the formal legality of the law expressed in the decisions for reference - the Darmstadt Administrative Court was of the opinion that the law required the approval of the Bundesrat.

Section 7 of the Aviation Security Act is also materially constitutional. According to the decision of the Federal Constitutional Court, § 7 Aviation Security Act does not violate fundamental rights or the requirements of the rule of law. The requirement of a background check does not constitute a disproportionate interference with the civil liberties of aviators. The regulation is also not lacking the necessary certainty. The involvement of the pilots in the background check does not violate the principle of equality either. In particular, the fact that the German legislature cannot also standardize the requirements for the issuing of foreign flight licenses does not violate equality.

The Federal Constitutional Court has left open whether the right to informational self-determination has been violated, because the provisions submitted for examination (especially Section 4 Paragraph 1 Sentence 2 No. 3 of the Aviation Act ) only regulate the requirement of the background check as such, but not its detailed design, through which the right to informational self-determination is affected.

Plenary decision of the Federal Constitutional Court in August 2012

In August 2012, the Federal Constitutional Court ruled in a plenary decision (file number: 2 PBvU 1/11) that the Bundeswehr may be deployed in Germany under strict conditions. The Federal Constitutional Court demands facts on a catastrophic scale . It would have a catastrophic injury imminent.

So far, there has only been a plenary decision four times; it was now necessary because the 2nd Senate had requested a plenary decision due to diverging earlier decisions of the 1st Senate. In 2006, for example, there was a ruling by the first Senate, which the 2nd Senate apparently did not want to follow.

The general ban on the use of the Bundeswehr has now been relativized. With 15 to 1 votes it was decided that the Bundeswehr could also operate outside the defined limits of the Basic Law in Germany. The Second Senate prevailed with its legal opinion insofar as in future military weapons may also be used to ward off terrorist attacks - at least within narrow limits. According to this, military weapons in Germany may only be used in extremely exceptional cases with a "catastrophic extent" to avert danger, provided that "catastrophic damage is imminent". Such a “particularly serious accident” therefore also includes a terrorist attack by an aircraft manned by civilians. A situation of a "particularly serious accident" does not exist when there is danger "from or from a demonstrating crowd". The deployment is not limited to combat missions by the Bundeswehr in the airspace, but can also be directed against terrorist attacks on the ground and at sea. However, the use of the armed forces as well as the use of specifically military means of defense are always only permitted as a last resort. The Federal Government as a whole must decide when such a catastrophic situation exists, even in urgent cases. It cannot delegate this task to the Minister of Defense.

The actual shooting down of an aircraft that was hijacked by terrorists remains prohibited; In future, only pushing the aircraft away or firing warning shots will be allowed. The Federal Constitutional Court found that shooting down an aircraft was only allowed if only terrorists were sitting in it.

Decision of the Federal Constitutional Court in April 2013

The Federal Constitutional Court ruled in April 2013 (Az. 2 BvF 1/05) that it is not the Defense Minister but only the German Federal Government that may decide in urgent cases. In the event of a terrorist attack, the defense minister may not alone decide on the deployment of the Bundeswehr in Germany. The Federal Constitutional Court declared a corresponding provision of the Aviation Security Act to be null and void.

Quotes

“The draft law also regulates the admissibility of an aircraft being shot down within very narrow limits. It would be dishonest and irresponsible to avoid a clarification in this extreme case. In a democracy, only politics can take on such a heavy responsibility. We must not put this burden on the soldiers. Only the defense minister can give his pilots a corresponding order. "

- Federal Minister of the Interior Otto Schily

“This law is the introduction of the final rescue kill. The state gives itself the right to kill the victims of a crime if the defense minister thinks that this is better for everyone. "

- Ex-member of the Bundestag Burkhard Hirsch

"There are collisions of goods that elude an exact legislative description."

- Member of the Bundestag Ernst Burgbacher

"This means that life is sacrificed in favor of another life."

- Federal President Horst Köhler

“Such treatment disregards those affected as subjects with dignity and inalienable rights. By using their killing as a means to save others, they are reified and at the same time disenfranchised; as their lives are unilaterally disposed of by the state, the aircraft passengers, who themselves need protection as victims, are denied the value that people have for their own sake. "

- The Federal Constitutional Court

See also

literature

Monographs and Commentaries

  • Wolf-Rüdiger Schenke , Kurt Graulich , Josef Ruthig : Federal Security Law - BPolG, BKAG, ATDG, BVerfSchG, BNDG, VereinsG . 2nd Edition. CH Beck, Munich 2019, ISBN 978-3-406-71602-7 , pp. 1001-1078 .
  • Alexander Archangelskij: The problem of vital emergency using the example of the shooting down of an airplane hijacked by terrorists. Berlin, 2005.
  • Anke Borsdorff, Christian Deyda: Aviation Security Act for the Federal Police. Luebecker Medien Verlag 2005, ISBN 3-9810551-0-1 .
  • Elmar Giemulla , Heiko van Schyndel: Frankfurt Commentary on Aviation Law, Vol. 1.3 "Aviation Security Act" Luchterhand Verlag 2006, ISBN 3-472-70440-3 .
  • Elmar Giemulla, Heiko van Schyndel: Aviation Security Act , Luchterhand Verlag 2006, ISBN 3-472-06614-8 .
  • Valentin Jeutner: Irresolvable Norm Conflicts in International Law , Oxford University Press 2017, ISBN 9780198808374 , p. 15.
  • Manuel Ladiges: The fight against non-state attackers in the airspace with special consideration of § 14 Abs. Aviation Security Act and the criminal assessment of the killing of bystanders , 557 pages, Duncker & Humblot Verlag 2007, ISBN 978-3-428-12436-7 .
  • Manuel Ladiges: The fight against non-state attackers in the airspace with special consideration of § 14 Abs. Aviation Security Act and the criminal assessment of the killing of bystanders , 2nd edition, 611 pages, Duncker & Humblot Verlag 2013, ISBN 978-3-428-14011 -4 .

Essays

Web links

Laws and EC regulation

Decisions of the Federal Constitutional Court

  • Judgment of the Federal Constitutional Court of February 15, 2006 - 1 BvR 357/05 -.
  • Order of the Federal Constitutional Court of May 4, 2010 - 2 BvL 8/07, 2 BvL 9/07 -.
  • Order of the Federal Constitutional Court of July 3, 2012 - 2 PBvU 1/11 -.

About the law

Individual evidence

  1. ↑ a b BVerfG, judgment of February 15, 2006 , Az. 1 BvR 357/05, full text.
  2. ↑ Answer of the Federal Government to the small question of the MPs Jan Mücke, Ernst Burgbacher, Horst Friedrich (Bayreuth), other MPs and the parliamentary group of the FDP. Bundestag printed paper 16/3413 of November 10, 2006 (PDF; 77 kB).
  3. ↑ Regulation (EC) No. 820/2008 (PDF)
  4. ↑ BGBl. 2007 I p. 2 .
  5. ↑ Version comparison of the versions of § 7 LuftSiG on www.buzer.de.
  6. ↑ BT-Drs. 15/2361 Draft of a law on the new regulation of aviation security tasks of January 14, 2004, PDF doc. 331 KB.
  7. ↑ Cf. official justification of the Interior Committee of the Bundestag BT-Drs. 16/3642 , p. 21 on No. 3, (PDF; 264 KB)
  8. ↑ See Art. 13 of the law.
  9. ↑ July infringement proceedings: most important decisions . EU commission. July 16, 2015. Retrieved August 29, 2019.
  10. ^ OVG Lüneburg, decision of May 3, 2005 , Az. 12 MS 132/05, full text.
  11. ↑ Press release of the Federal Constitutional Court of June 11, 2010.
  12. ^ VG Darmstadt, decision of June 27, 2007, ref. 5 E 1854/06 (3), order for reference as PDF and ref. 5 E 1495/06 (1).
  13. ↑ Manuel Bewarder , Thorsten Jungholt: A bang in Karlsruhe . In: Welt Online , Die Welt, August 18, 2012. Accessed December 21, 2016. 
  14. ↑ Federal Armed Forces in Germany: Karlsruhe makes disaster decision . In: SZ Online , Süddeutsche Zeitung, August 17, 2012. Accessed December 21, 2016. 
  15. ↑ Decision of the Federal Constitutional Court: Karlsruhe allows the Federal Armed Forces to be deployed in Germany . In: Tagesschau.de , Tagesschau.de, August 17, 2012. Accessed December 21, 2016. 
  16. ^ Bundeswehr: Constitutional Court allows weapons to be used in Germany . In: SPIEGEL ONLINE , Der Spiegel, August 17, 2012. Retrieved December 21, 2016. 
  17. ↑ Opinion No. 78/2016 of the German Lawyers' Association by the Hazard Defense Law Committee on the deployment of the Bundeswehr inside (in particular on the Federal Government's new White Paper on security policy and the future of the Bundeswehr) . Pp. 1-9. November 29, 2016. Retrieved January 8, 2017.
  18. ↑ Christian Ludwig Geminn: Part 6 Country Studies → 6.1 German Law → 6.1.2 Basic Law → 6.1.2.1 Air Safety Act . In: Legally compatible use of safety measures in public transport . Springer Vieweg Verlag, Wiesbaden 2014, ISBN 978-3-658-05352-9 , p. 265, p. 252-266 (accessed on January 8, 2017).
  19. ↑ Dr. Robert Chr. Van Ooyen: Federal government, state theory and constitutional court in the dispute over the new security . In: Federal Constitutional Court and Political Theory: A Research Approach to the Politology of Constitutional Jurisdiction . Springer-Verlag GmbH, Heidelberg 2015, ISBN 978-3-658-07947-5 , pp. 89-93, pp. 59-93 (accessed on January 8, 2017).
  20. ↑ Counter-terrorism: Only the federal government may deploy the armed forces inside . In: Süddeutsche Zeitung , Süddeutsche Zeitung, April 18, 2013. Accessed December 21, 2016.