Judgment of the Federal Constitutional Court on the Aviation Security Act 2005

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The German Aviation Security Act (LuftSiG), which was passed in response to the terrorist attacks on September 11, 2001 and entered into force on January 15, 2005, did not stand up to the constitutional review by the Federal Constitutional Court on one essential point February 2006.

tenor

The old version of Section 14 (3) of the Aviation Security Act is in conjunction with Article 2 (2) sentence 1 in conjunction with Art. 87a para. 2 and Art. 35 para. 2 and 3 as well as in conjunction with Art. 1 para. 1 of the Basic Law (GG) incompatible and void.

The old version of Paragraph 14 (3) of the Aviation Security Act, which was declared null and void, reads: “The direct use of armed force is only permissible if, according to the circumstances, it can be assumed that the aircraft is intended to be used against human life, and it is the only one Means to ward off this present danger. "

Such a law already lacks the federal government's legislative power. Article 35, Paragraph 2, Clause 2 and Paragraph 3, Clause 1 of the Basic Law, which regulates the use of the armed forces in the fight against natural disasters or particularly serious accidents, does not allow the Federation to use armed forces with military weapons. In addition, Section 14 (3) Aviation Security Act is not compatible with the basic right to life and the guarantee of human dignity in the Basic Law, insofar as the use of armed violence affects people on board the aircraft who are not involved in the crime. These would be treated as mere objects by the state using their killing as a means of saving others; they are denied the value that is due to man for his own sake.

Formal constitutional reasons

The federal government lacks the legislative power to enact the regulation of Section 14 (3) Aviation Security Act. It is true that he has the right to legislate directly from Article 35, Paragraph 2, Clause 2 and Paragraph 3, Clause 1 of the Basic Law, which provides details on the use of the armed forces in combating natural disasters and particularly serious accidents in accordance with these provisions and on the Determine cooperation with the participating countries. However, the authorization of the armed forces contained in § 14.3 of the Aviation Security Act to act directly on an aircraft with armed violence is not in accordance with Article 35 of the Basic Law.

  1. The incompatibility of § 14.3 of the Aviation Security Act with Article 35.2 sentence 2 of the Basic Law (regional disaster emergency) does not arise from the fact that the operational measure is to be ordered and carried out at a point in time at which a significant air incident has already occurred has occurred (hijacking an airplane), but the particularly serious accident itself (intentional airplane crash) has not yet occurred. Because the concept of a particularly serious accident within the meaning of Article 35 of the Basic Law also includes events that allow the occurrence of a catastrophe to be expected with a probability bordering on certainty. However, the direct action on an aircraft with armed force does not preserve the framework of Article 35, Paragraph 2, Sentence 2 of the Basic Law because this norm does not allow the armed forces to use specifically military weapons to combat natural disasters and particularly serious accidents. The "help" referred to in Article 35, Paragraph 2, Clause 2 of the Basic Law is granted to the Länder so that they can effectively fulfill their task of coping with natural disasters and particularly serious accidents. The focus on this task in the area of ​​responsibility of the security authorities of the federal states also necessarily determines the type of aids that may be used for the purpose of providing assistance when the armed forces are deployed. They cannot be of a qualitatively different kind than the means originally available to the police forces of the federal states for the performance of their tasks.
  2. Section 14.3 of the Aviation Security Act is also incompatible with Article 35.3 sentence 1 of the Basic Law. According to this, only the federal government is expressly authorized to deploy the armed forces in the event of a supra-regional emergency . The regulations in the Aviation Security Act do not adequately address this. They provide for the Defense Minister to decide in consultation with the Federal Minister of the Interior if the Federal Government cannot make a timely decision. In view of the short time that would be available in the present context, the Federal Government is then not only exceptionally, but regularly replaced by a single minister when deciding on the deployment of the armed forces. This makes it clear that measures of the type standardized in Section 14 of the Aviation Security Act will generally not be manageable in the way provided for in Article 35.3 sentence 1 of the Basic Law.
  3. In addition, the constitutional framework of Article 35, Paragraph 3, Clause 1 of the Basic Law is exceeded primarily because the constitution does not permit the use of armed forces with military weapons even in the event of a supra-regional emergency.

Substantive constitutional reasons

Section 14 (3 ) of the Aviation Security Act is also incompatible with the right to life ( Article 2 (2) sentence 1 of the Basic Law) in conjunction with the guarantee of human dignity ( Article 1 (1) of the Basic Law), insofar as people who were not involved in the use of armed violence began On board the aircraft. 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 in such a situation takes the defensive measure of Section 14 (3) Aviation Security Act, treats them as mere objects of its rescue operation to protect others.

  1. Such treatment disregards those affected as subjects with dignity and inalienable rights. By using their killing as a means of saving others, they are reified and disenfranchised. As their lives are unilaterally disposed of by the state, the aircraft occupants, who themselves need protection as victims, are deprived of the value that each person deserves for their own sake. Under the validity of Article 1, Paragraph 1 of the Basic Law (guarantee of human dignity), a law is absolutely inconceivable on the basis of which it is possible to willfully kill innocent people who are in such a helpless situation.
  2. The assumption that the person boarding an aircraft as a crew member or passenger presumably consents to the aircraft being shot down and thus to his own killing if this is involved in an air incident is a fiction that is alien to life. Even the assessment that those affected are doomed to die anyway cannot deprive their killing of the character of a violation of the dignity of these people. Human life and human dignity enjoy the same constitutional protection regardless of the duration of physical existence.
  3. 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 incident are no longer perceived as human beings.
  4. 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. Because in the scope of application of § 14 Aviation Security Act, it is not about the defense against attacks aimed at the elimination of the community and the destruction of the state legal and freedom order.
  5. Finally, Paragraph 14 of the Aviation Security Act cannot be justified by the state's duty of protection in favor of those against whose lives 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 precisely what is missing in the present case.

Paragraph 14.3 of the Aviation Security Act, on the other hand, is materially compatible with Article 2, Paragraph 2, Clause 1 in conjunction with Article 1, Paragraph 1 of the Basic Law, insofar as the direct action with armed force is directed against an unmanned aircraft or exclusively against persons who do Want to use aircraft as a weapon against the lives of people on earth. It corresponds to the subject of the attacker if the consequences of his self-determined behavior are personally attributed to him and he is made responsible for the events he has set in motion. The principle of proportionality is also preserved. The goal pursued by Section 14 of the Aviation Security Act, to save the lives of people, is of such weight that it can justify the serious interference with the perpetrator's basic right to life. The severity of the violation of fundamental rights directed against them is also lessened by the fact that the perpetrators themselves have created the need for state intervention and can avert this intervention at any time by refraining from realizing their criminal plan. Nonetheless, the regulation does not formally last, as the federal government lacks legislative competence.

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Individual evidence

  1. ↑ Federal Law Gazette 2005, Part I No. 3, published in Bonn on January 14, 2005, p. 83 ( Federal Law Gazette I p. 78 )