Germany - Constitutional Court of the Free State of Saxony, 24 April 2020, Vf. 11-IV-20 (HS); 12-IV-20 (e.A.)

Facts:

The petitioner (hereinafter "B") is a Pakistani citizen and Christian. He entered the Federal Republic of Germany in August 2015. In his asylum application, he alleged fear of persecution on religious grounds The Federal Office of Migration and Refugees (hereinafter “BAMF”) rejected B’s asylum application. On 21 December 2018, B filed a complaint against this decision with the Dresden Administrative Court (hereinafter "VG").

At the oral hearing, the VG rejected applications for evidence made by B’s counsel, arguing that they had not been announced within the period of time laid down in Sec. 74 of the German Asylum Act (Asylgesetz) and that the hearing of evidence would delay the proceedings. The VG dismissed the overall application as unfounded, since B had not been able to prove at trial that he was entitled to refugee status. Reasons for subsidiary protection or deportation bans were neither presented nor evident.

B's application for admission of the appeal was rejected by the Saxon Higher Administrative Court (hereinafter "OVG"). There was no violation of the right to be heard (Sec. 78 (3) s. 1 and 3 German Asylum Act, Sec. 138 German Rules of the Administrative  Courts [VwGO]).

B filed a complaint with the Constitutional Court of Saxony and claimed, among other things, the violation of his right to be heard under Article 78.(2) of the Saxon Constitution. The VG had neither referred to Sec. 74 (2) s. 2 German Asylum Act nor had it set a specific deadline within the meaning of Sec. 87b (2) (3) of the German Rules of the Administrative Courts. Nor had any instruction been given as to the consequences of failure to meet a deadline. The preclusion provision had been misused overall. Discretionary considerations of the VG cannot be inferred either from the protocol of the oral hearing or from the wording of the decision; the principle of proportionality had not been observed. The mere reference to a possibly expected delay in proceedings did not meet the requirements. The VG should at least have pursued the request for evidence with regard to the complaint to the police station.

Decision & reasoning:

The petition is admissible. The right to be heard under Article 78 (2) of the Saxon Constitution constitutes a suitable subject of appeal. Article 78 (2) Saxon Constitution is a basic procedural right of the State Constitution so that the provision can be reviewed by the Constitutional Court by way of a constitutional petition.

The right to be heard obliges courts to take note of the actual submissions of the parties to the proceedings, to consider them and - if relevant for the decision - to take them into account. Preclusion provisions, such as Sec. 74 German Asylum Act and Sec. 87b German Rules of the Administrative Courts, on the other hand, may justify disregarding the factual submissions of a party and restricting the right to be heard in order to accelerate the procedure. Preclusion provisions, however, are to be applied only in exceptional cases, as they may have adverse consequences for the party concerned. Judicial review of such decisions by the lower court must therefore go beyond a mere review for arbitrariness. A violation of the right to be heard is committed if the lower court disregards the meaning and scope of this fundamental right and the contested decision is based on the violation.

The rejection of the applications for evidence of the VG with reference to Sec. 74 (2) s. 3 German Asylum Act in conjunction with Sec. 78b (3) of the German Rules of the Administrative Courts violates the rights of B under Article 78 (2) of the Saxon Constitution.

The application of the provisions on preclusion in Sec. 74 (2) s. 2 and Sec. 87b (3) German Rules of the Administrative Courts is always at the discretion of the court. The depth of justification for the application of exclusionary provisions depends on the individual case and increases according to the severity of the consequences of preclusion.

In the case at hand, the VG rejected all submissions of evidence in a blanket manner and without a dispute on the merits solely on the grounds of failure to meet the one-month deadline of Sec. 74 (2) s. 1 German Asylum Act. No further considerations of reasoning or discretion are apparent. It was not presented to what extent B had to file the applications for evidence already in the statement of grounds of 27 February 2019.

B could only be held responsible for missing the deadline if he had violated his duty to support the proceedings. In this case, however, B had no reason to provide further information on his identity, since the BAMF did not base its rejection notice on doubts regarding B's identity but his persecution in Pakistan.

The decision of the VG is also based on the constitutional violation. It cannot be ruled out that the VG would have arrived at a different conclusion if it had used the requests for evidence of 1 August, which were based on the personal credibility of B, which had been submitted in vain.

Outcome:

Petition upheld; case remitted to the VG Dresden; application for interim measures thereby settled.