Firing authorisation in the Aviation Security Act void
Press Release No. 11/2006 of 15 February 2006
Judgment of 15 February 2006
1 BvR 357/05
§ Article 14(3) of the Aviation Security Act (LuftSiG), which authorises the armed forces to shoot down aircraft intended to be used as weapons against human life, is incompatible with the Basic Law and void. This was decided by the First Senate of the Federal Constitutional Court in a ruling of 15 February 2006, which states that the federal government already lacks the legislative power to regulate this issue.
Article 35.2 sentence 2 and 35.3 sentence 1 of the Basic Law, which regulates the deployment of the armed forces in combating natural disasters or particularly serious accidents, does not permit the Federation to deploy the armed forces with specifically military weapons. Furthermore, § 14, Subsection 3, LuftSiG, is not compatible with the fundamental right to life and with the guarantee of human dignity of the Basic Law, insofar as people on board the aircraft who are not involved in the use of armed force are affected by the use of armed force.
These people are treated as mere objects because the state uses their killing as a means of saving others; they are thus denied the value that man has for his own sake.
Thus
the constitutional complaint of four lawyers, one patent attorney and one aircraft captain, who had directly challenged § 14.3 LuftSiG, was successful (on the facts of the case see press release no. 101/2005 of 17 October 2005).
The decision is essentially based on the following considerations:
1. the federal government lacks the legislative power to enact the regulation of § 14 para. 3 LuftSiG. Admittedly, it does have the right to legislate directly under Article 35.2 sentence 2 and Article 35.3 sentence 1 of the Basic Law for regulations which determine the details of the deployment of the armed forces in combating natural disasters and particularly serious accidents in accordance with these provisions and of the cooperation with the participating Länder. However, the authorisation of the armed forces to act directly on an aircraft with armed force contained in § 14 (3) LuftSiG is not in conformity with Article 35 (2) sentence 2 and (3) GG.
a) However, the incompatibility of § 14 para. 3 LuftSiG with Article 35 para. 2 sentence 2 GG (regional disaster emergency) does not already result from the fact that the operational measure is to be ordered and carried out at a time when a significant air incident has already occurred (hijacking of an aircraft), but the particularly serious accident itself (intended aircraft crash) has not yet occurred. This is because the concept of a particularly serious accident within the meaning of Article 35.2 sentence 2 of the Basic Law also includes events which make it possible to expect the occurrence of a disaster with a probability bordering on certainty. However, the operational measure of direct action on an aircraft by force of arms does not preserve the framework of Article 35.2 sentence 2 of the Basic Law because this provision does not permit combat operations of the armed forces with specifically military weapons in the fight against natural disasters and particularly serious accidents. The "assistance" referred to in Article 35.2 sentence 2 of the Basic Law is granted to the Länder so that they can effectively fulfil the task of coping with natural disasters and particularly serious accidents that is incumbent upon them in the context of averting danger. The orientation towards this task within the area of responsibility of the danger prevention authorities of the Länder necessarily also determines the type of aids that may be used in the deployment of the armed forces for the purpose of providing assistance. They cannot be of a qualitatively different nature than those which are originally available to the police forces of the Länder for the performance of their tasks.
b) Article 14 (3) LuftSiG is also incompatible with Article 35 (3) sentence 1 of the Basic Law. According to this, in the case of a supraregional disaster emergency, only the Federal Government is expressly authorised to deploy the armed forces. The provisions of the Aviation Security Act do not do sufficient justice to this. They provide that the Minister of Defence decides in consultation with the Federal Minister of the Interior if a timely decision by the Federal Government is not possible. In view of the tight time budget, which is generally only available in the present context, the Federal Government is then replaced by an individual minister not only exceptionally but regularly when deciding on the deployment of the armed forces in the event of a supraregional disaster. This makes it clear that measures of the kind standardised in § 14 (3) LuftSiG cannot, as a rule, be dealt with in the way provided for in Article 35 (3) sentence 1 GG.
Moreover, the constitutional framework of Article 35.3 sentence 1 of the Basic Law on defence is exceeded above all because, even in the case of a supra-regional disaster emergency, the deployment of armed forces with typically military weapons is constitutionally not permitted.
2 § 14, paragraph 3 LuftSiG is also incompatible with the right to life (Article 2, paragraph 2, sentence 1 of the Basic Law) in conjunction with the guarantee of human dignity (Article 1, paragraph 1 of the Basic Law), insofar as people on board the aircraft who are not involved in the use of armed force are affected by the use of armed force.
The passengers and crew members exposed to such an operation are in a hopeless situation for them. They can no longer influence their living conditions independently of others in a self-determined manner. This makes them an object not only of the perpetrator.
Even the state, which in such a situation resorts to the defensive measures of § 14 (3) LuftSiG, treats them as mere objects of its rescue operations for the protection of others. Such treatment disregards those affected as subjects with dignity and inalienable rights. By using their killing as a means of saving others, they are objectified and at the same time deprived of their rights; by unilaterally disposing of their lives by the state, the passengers of the aircraft, who are themselves in need of protection as victims, are denied the value that humans have for their own sake. Moreover, this happens under circumstances which do not allow us to expect that the actual situation can always be fully understood and correctly assessed at the moment when a decision is to be made on the implementation of an operational measure in accordance with § 14 para. 3 LuftSiG.
Under the validity of Article 1 para. 1 of the Basic Law (guarantee of human dignity), it is simply unimaginable to deliberately kill innocent people who are in such a helpless situation on the basis of a legal authorisation. The assumption that the person who boards an aircraft as a crew member or passenger presumably consents to its being shot down and thus to his or her own killing if it becomes involved in an air incident is an extrinsic fiction. Even the assessment that the people concerned are doomed to death anyway cannot take away the character of an offence against the dignity of these people in the situation described.
Human life and human dignity enjoy equal constitutional protection regardless of the duration of the physical existence of the individual human being. The view sometimes expressed that the persons held on board have become part of a weapon and must be treated as such, expresses almost openly the fact that the victims of such an act are no longer perceived as human beings. The idea that the individual is obliged to sacrifice his or her life in the interest of the state as a whole, if only in this way it is possible to protect the legally constituted community from attacks aimed at its collapse and destruction, also leads to no other result. This is because the scope of application of § 14 Para. 3 LuftSiG does not deal with the defence against attacks aimed at the elimination of the community and the destruction of the state legal and civil order. Finally, § 14 para. 3 LuftSiG cannot be justified by the state's duty to protect those against whose lives the aircraft misused as a weapon is to be used. Only such means may be used to fulfil the state's duty to protect that are in accordance with the constitution. This is lacking in the present case.
3 By contrast, § 14, Subsection 3, LuftSiG is compatible with Article 2, Subsection 2, Sentence 1 in conjunction with Article 1, Subsection 1, GG, in so far as the direct effect by force of arms is directed against an unmanned aircraft or exclusively against persons who want to use the aircraft as a weapon against the lives of people on earth. It corresponds to the subject position of the aggressor if the consequences of his self-determined behaviour are personally attributed to him and he is held responsible for the events set in motion by him. The principle of proportionality is also respected. The goal of saving human lives pursued by § 14, Subsection 3, LuftSiG is of such weight that it can justify the serious encroachment on the basic right to life of the offender. The severity of the encroachment on the fundamental right directed against them is further reduced by the fact that the perpetrators themselves have brought about the necessity of state intervention and can avert this intervention at any time by refraining from implementing their criminal plan. Nevertheless, the provision is not valid in this respect either, since the federal government already lacks the legislative competence.
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