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Case:
BVerfGE 60, 253 2 BvL 26/81 "Failure to observe deadline in Asylum Proceedings"
Date:
20 April 1982
Judges:
Zeidler, Rinck, Wand, Rottmann, Niebler, Steinberger, Träger, Mahrenholz
Copyright:
© Nomos Verlagsgesellschaft

HEADNOTES:

1.  When the normative structure of judicial rules of procedure guarantee comprehensive review of the subject matter of the proceedings in law and in fact and ensure that the type and effect of the decision satisfy the requirements of legal protection, then protection under Art. 19(4), first sentence, of the Basic Law, as well as that following from substantive basic rights, is basically satisfied.

2.  It is compatible with the Basic Law, in particular, with Art. 19(4), first sentence, of the Basic Law, when the attorney for the action is assigned fault pursuant to § 173 of the Rules of Administrative Procedure and § 85(2) of the Civil Rules of Procedure with regard to reinstatement of administrative asylum proceedings following failure to observe a deadline.

3.  With respect to the degree of judicial legal protection required under public international law, a foreigner must have access to the courts pursuant to, and within the limits on, generally available recourse, and his request for legal protection must be reviewed and decided upon by an impartial tribunal; furthermore, a minimum degree of procedural justice, in particular, a satisfactory hearing, must be accorded, and the proceedings must not be improperly delayed.

In addition, anyone claiming a right of asylum under Art. 16(2), second sentence, of the Basic Law and thus requesting the protection and privileges of the German legal system must, under public international law, accept this legal system as it then applies, including the procedural precautions for guaranteeing legal certainty.

    Order of the Second Senate of 20 April 1982 in the proceedings

for constitutional review of § 85(2) of the Civil Rules of Procedure (Zivilprozeßordnung; ZPO), inserted by the Act to Simplify and Accelerate Court Proceedings of 3 December 1976. [i] -- Order to submit by the Stuttgart Administrative Court of 4 June 1981 -- A 14 K 865/80 --

DECISION

§ 85(2) of the ZPO, inserted by the Act to Simplify and Accelerate Court Proceedings of 3 December 1976, together with § 173 of the Rules of Administrative Procedure (Verwaltungsgerichtsordnung; VwGO) is compatible with the Basic Law as regards the equating of fault on the party of the attorney for the action with fault on the part of the party upon failure to observe a deadline in administrative proceedings for recognition of right to asylum.

EXTRACT FROM GROUNDS:

A.

I.

The provisions of relevance here read:

§ 60 of the VwGO

(1)  If a person was without fault prevented from observing a legal deadline, he is to be entitled upon application to reinstatement of the proceedings.

(2)  The application is to be submitted within two weeks following lapse of the impediment. The facts in support of the application are to be asserted in the application itself or in the proceedings on the application. The omitted action is to be accomplished within these two weeks. If this has occurred, then reinstatement may be granted without application.

(3)  Following one year from the end of the neglected deadline, the application becomes inadmissible, unless application was impossible during this year due to circumstances beyond the party's control.

(4)  The Court is to decide on the application to reinstate, which also has to rule on the omitted action.

(5)  Reinstatement is non-appealable.

§ 173 of the VwGO:

Insofar as this Act does not contain provisions on the proceedings, the Court Constitution Act and the Civil Rules of Procedures are to be applied by analogy, if the fundamental differences of the two types of proceedings do not preclude this.

§ 85 of the ZPO:

(1)  The actions undertaken by the attorney are as binding on the party as if the party had performed these himself. This applies to confessions and other declarations of fact, insofar as these are not immediately retracted or rectified by the party.

(2)  Fault on the part of the attorney is equivalent to fault on the part of the party.

II.

1.  In the proceedings below, the Complainant, a Turkish national who entered the Federal territory in 1980, applied for political asylum. In support of this, he claimed that he had been repeatedly threatened by members of a party in Turkey in order to force him to join this party.

By way of order of 28 August 1980, the Federal Office for the Recognition of Foreign Refugees rejected the application with the reasoning that the Complainant could not be viewed as politically persecuted. He was then ordered on 8 October 1980 to leave the Federal territory at once; in the event of filing of complaint, the exit deadline was extended to the date of decision on the complaint. . . .

2.  By way of order of 4 June 1981, the Administrative Court stayed the proceedings,

in order to obtain the decision of the Federal Constitutional Court on whether Art. 85(2) of the Rules of Civil Procedure is compatible with the Basic Law.

. . .

b) The Administrative Court considers it to be incompatible with Art. 19(4) of the Basic Law, together with Art. 16(2), second sentence, of the Basic Law and the principle of social justice, when a complainant is attributed with fault on the part of his attorney in administrative proceedings for recognition of right to asylum with regard to reinstatement following a neglected deadline.

. . .

III.

. . .

1.  The Federal Minister of Justice considers it to be compatible with the Basic Law when, pursuant to § 173 of the VwGO and § 85(2) of the ZPO, fault on the part of the attorney is also attributed to the part when the issue is reinstatement following a neglected deadline in proceedings for recognition of the right to asylum.

. . .

2.  The President of the Federal Administrative Court has submitted opinions from all nine Senates of the Federal Administrative Court:

All of the Senates apply § 85(2) of the ZPO pursuant to § 173 of the VwGO and consider this to be constitutionally unobjectionable. . . .

B.

. . .

C.

§ 85(2) of the ZPO, together with § 173 of the VwGO is compatible with the Basic Law when fault on the part of the attorney is equated with fault on the part of the party due to neglect of a deadline to reinstate administrative proceedings for recognition of the right to asylum.

I.

Art. 19(4) Basic Law, first sentence, has not been violated.

1.  The guarantee of effective legal protection against (asserted) violations of rights by public authority is of particular importance when at issue is the warding off of basic-rights violations or the enforcement of constitutional guarantees in favor of private persons vis-à-vis public authority. [ii] Attribution of fault on the part of the attorney for the action by the relevant rule has a direct impact on the extent and effectiveness of administrative legal protection and thus on the enforcement of a right to asylum under Art. 16(2), second sentence, of the Basic Law.

The rules in § 85(2) of the ZPO and § 173 of the VwGO do not merely affect, as in the proceedings below, reinstatement following a neglected deadline to file a complaint but rather all legal deadlines in administrative proceedings, which may be reinstated under § 60 of the VwGO if they are neglected, including even the deadline to file an application for reinstatement. Their indirect, limiting effects on the scope of legal protection are evident: if an attorney neglects a deadline for an appeal, the party loses further recourse; if he neglects a deadline on filing a complaint, the party has no recourse whatsoever.

2.  These sorts of rules on legal protection are compatible with Art. 19(4), first sentence, of the Basic Law when they are justified by observance of other constitutional principles; the Constitution is a conceptual whole, such that individual guarantees -- and thus Art. 19(4), first sentence, of the Basic Law as well -- are to be interpreted in such a way that other constitutional norms and principles are not prejudiced.

As measured against this, the rule under review is not constitutionally objectionable; it is justified by reasons of legal certainty. Legal certainty is an essential element of rule of law and thus a fundamental principle of the Basic Law. [iii] a) The Basic Law has widely subjected the exercise of public authority over the citizen to the supervision of independent tribunals. Arts. 19(4) and 20(2), second sentence, and Section IX of the Basic Law strengthen the concept of commitment of state sovereign power to law with the establishment of legal protection by independent courts. This commitment to law is indispensable for a system that claims to observe the ideals of dignity, freedom and equality of humans, as well as social justice. Freedom moreover requires that the legal system be dependable, since freedom means, above all, the possibility of structuring one's own life according to one's own notions. An essential condition for this is that the circumstances and factors that are able to have a lasting effect on the possibilities for structuring such notions and on their implementation -- in particular, the effects on this by the State -- can be assessed, as far as possible, with certainty.

b) Court proceedings play a special role in legal certainty. Recourse to the courts, guaranteed by Art. 19(4), first sentence, of the Basic Law for (asserted) violations of rights by public authority, must be given normative shape. Depending on the subject matter to be decided upon, a variety of forms and structures for recourse to the courts can be made out, especially for types of proceedings, procedural principles, types of decisions and effects of decisions. In so doing, the legislature is endowed with wide discretion in structuring, in particular, the power to balance the requirements of legal certainty with the possible detriments to the chances for achieving substantive justice in a given case. On account of legal certainty, the legal system may, by way of the institution of res indicata, for instance, accept the fact that even incorrect court decisions are conclusively binding in the individual case. The fundamental precept of rule of law -- realizing substantive justice -- thus does not relate solely to the individual case but rather as well to the interrelationship of the legal system's effects and its implementation as a whole. Although there is a changed relationship between this precept and the concerns for legal certainty, one does not find a universally irresolvable contradiction: bringing about legal certainty for proceedings itself promotes substantive justice, in that it leads to ensuring freedom shaken by litigation or to resolving a right in need of clarification.

The structuring of resort to the courts must, of course, satisfy the requirements of legal protection under Art. 19(4), first sentence, of the Basic Law: it must pursue the objective of guaranteeing effective legal protection; [iv] it must be appropriate and fitting, and it must be reasonable for the individual seeking recourse -- in particular, it must not place unreasonably large procedural obstacles on access to the courts.

c) Both the principles of a democratic, constitutional order in general and the special protective purpose of Art. 19(4), first sentence, of the Basic Law in particular require that legal certainty be effected within a reasonable period of time also in those areas where it is to be brought about for court proceedings: this is the essence of procedural (as well as a number of substantive) deadlines -- from deadlines on filing complaints or for various litigational actions to deadlines on legal remedies. This essence is also of relevance when court proceedings are not sought. Under a Constitution in which sovereign conduct is so comprehensively subject to judicial control, it is clearly an irrenouncable concern of the legal community that there be clear, established rules on when sovereign conduct becomes legally effective, i.e., when it may no longer be called into question under the law.

aa) In the area of legal protection, legal certainty is arrived at, alongside the institution of res indicata, [v] primarily by way of procedural deadlines. A comparable interest in legal certainty is found in the legal effectiveness of administrative acts. On the one hand, the Basic Law has given priority to the courts in safeguarding the legal system for finally and conclusively deciding on what is right in the concrete instance. Nevertheless, the requirement of legal certainty is no less applicable in other areas of the legal system, in particular, on the boundaries of court activity. This requirement also demands that in all areas where acts are undertaken that claim to be legally binding, certainty be bestowed upon the affected parties as quickly as possible for that which is binding for them. This also applies in administrative law, which is widely characterized by the possibility of structuring and determining rights in a sovereign, binding fashion. Especially in a State that is so extensively subject to legal supervision, it is indispensable that its administrative acts become legally effective within reasonable time limits, unless it is to become incapacitated, thus prejudicing the liberty of all. This legal effectiveness of administrative acts is, although on a different level, of comparable importance for legal certainty as is the res indicata of court decisions. The deadlines for objections and complaints with respect to administrative acts are just as much instruments for assuring legal certainty as are deadlines for appeals against court decisions.

In the case of a decision on recognition of the right to asylum, such an interest may be found alone in the fact that it involves a status decision basically controlling for all State authorities. [vi] bb) In addition to aiding in achieving legal certainty, legal force and legal effectiveness and the related deadline rules tend to serve in guaranteeing effective, official court proceedings. They relieve the burden on the various decisional instances. Deadline provisions represent an appropriate tool for accelerating the proceedings. As a result of deadlines on appeals, it is resolved for all parties within a certain period of time whether the decision is final or the litigation to be continued. Acceleration of the proceedings also give rise to a situation where the basis for litigation is fresh, evidence is still available, the parties' fact pattern is still in memory, newly arising aspects can be subsequently clarified, and requisite additional evidence can still be procured. Furthermore, the value of the decision is also influenced by the speediness of the proceedings occasioned by deadlines.

cc) Temporal limits on procedural conduct are especially in the interests of the parties themselves, being an expression of procedural assistance for them. Within specific deadlines, it must be clear to them whether they are willing to accept the arrived-at decision or resort to an appeal. This applies particularly to applicants for asylum, who normally find themselves in a position where they must make basic decisions and plans for their future.

Even the respective concrete procedural objectives, as well as the well-understood interests of the parties, thus justify temporal restraints on access to legal redress and thereby the institution of res indicata and effectiveness and the deadline rules directed at the latter.

3.  The decision to attribute of fault on the part of the attorney for the action with regard to reinstatement of proceedings has been made on the basis of similar considerations. This is made clear by a glance at the history of the relevant rules. . . . (elaboration by the Court)

4.  In view of the foregoing, it becomes clear that for the constitutional review in the instant case, decisive is whether the special qualities of the administrative trial -- especially in proceedings for recognition of right to asylum -- are so weighty that the Federal Constitutional Court must take exception with the assessment of the legislature in order to uphold the protective objective of Art. 19(4), first sentence, of the Basic Law.

This is to be answered in the negative. § 85(2) of the ZPO, together with § 173 of the VwGO does not restrict judicial legal protection in an unconstitutional manner; the regulation is not only appropriate for aiding in legal certainty; the rule, uniform for civil and administrative proceedings, is in the constitutional State's interest in clarity, simplicity and certainty of procedural law; it does not represent an improper or unreasonable limitation of the guarantee provided under Art. 19(4), first sentence, of the Basic Law. Under these circumstances, the legislature is entitled, in the interest of legal certainty, to accept the associated detriments to a party's chances to have the substantive legal basis clarified by a court decision in every individual case. This legislative assessment is in harmony with the Basic Law.

The objections raised as to the constitutionality of the rule do not alter the position; neither Art. 19(4), first sentence, of the Basic Law nor other basic rights, principles or norms of constitutional law to be considered within the scope of this standard call for a different rule on attribution of fault on the part of the attorney for the action in administrative proceedings for recognition of right to asylum:

a) It has been asserted that the rule is unconstitutional, because the proceedings for the recognition of right to asylum before the Federal Office basically do not represent a full administrative review procedure. It is hardly capable of resolving an individual case, instead summarily assigning the applicant into a group and treating his request in a lump-sum manner. The notice of rejection, when it becomes legally effective, is therefore hardly able to be seen as a satisfactory decision on the merits. A public interest in the legal effectiveness of this unsatisfactory act of determination is thus only able to be made out to a minor extent, since it takes only scarce account of another public interest in the effective enforcement of the basic right of asylum.

On the other hand, the following can be determined:

The notice by the Federal Office is by statute expressly intended as a comprehensive, conclusive administrative decision based on an exhaustive resolution of the facts. [vii] According to the statutory rule, this -- and not, e.g., a court decision -- is the central act decisive for the recognition of right to asylum. It is primarily the responsibility of the administrative authorities themselves [viii] to conduct orderly recognition proceedings. The review by the administrative court here serves, as is basically the case in other administrative proceedings, the supervision of administrative activity to the extent described by § 113 of the VwGO.  In proceedings of the kind at issue here, this review may well de facto have special significance. The structuring of the administrative proceedings as supervisory proceedings corresponds to the principle of separation of powers in Art. 20(2) of the Basic Law.

For this reason, it is to be assumed that a legally effective notice of denial by the Federal Office also represents under the Constitution the finally binding State decision on the recognition of right to asylum. A State determination of right to asylum that satisfies the Constitution thus does not take place only with the decision by the administrative court. This is merely a supervisory decision, but it is not the status decision as to the granting of asylum. It is constitutionally unobjectionable and, with regard to legal certainty, in no way unreasonable that the Act ensures with corresponding rules the legal effectiveness of such notices as is also the case with other administrative acts.

b) The same applies with regard to reservations going to the absence of proceedings to review upon party protest and the reduction of the Recognitions Committee in the Federal Office to one employee by way of the 2nd Act to Accelerate Asylum Proceedings of 16 August 1980. [ix] In proceedings not preceded by introductory proceedings, legal protection by the administrative court does not differ in its effectiveness from that afforded in other cases. The central subject of administrative court proceedings is always the administrative act that exists or is requested upon conclusion of the foregoing administrative proceedings, basically regardless of the manner in which the administrative proceedings have been conducted.

Of course, the absence of review upon party protest means a special rule for asylum proceedings, as is the case with the rule on the competence and organization of recognition authorities. The legislature has not, however, drawn any farther-reaching legal conclusions for the administrative court proceedings. It is also not apparent that any such conclusions would be constitutionally called for:

In comparison to other administrative proceedings to which § 68(1), first sentence, of the VwGO pertains, the absence of review proceedings upon party protest means a lessening of supervision to which court proceedings are subject, as well as of the lawfulness of administrative activity by the administration itself; nevertheless, neither Art. 19(4), first sentence, nor Art. 16(2), second sentence, of the Basic Law requires such a preliminary proceeding.   The same goes for the structuring of the recognition authorities objected to here.

c) A statutorily justified special feature of court proceedings in asylum matters is represented by the limitation on the appeals channel by § 34(1) of the Aliens Act, in the version of 25 July 1978. [x] In this context, reservations have been expressed that administrative court proceedings are of a summary character; this is said to raise the significance of possible appeals.

It can be determined with regard to these reservations that the administrative court system in the first instance facilitates and requires the determination and assessment of the case that is necessary for the decision on the request for legal protection from both a factual and legal standpoint. This structure also satisfies the constitutional requirements of Art. 19(4), first sentence, of the Basic Law in asylum matters. Other procedural forms not comporting with applicable law must be addressed with given legal means, such as with the complaint of non-admissibility pursuant to § 132(2), No. 3 of the VwGO.

The limitation on the appeals channel under § 34(1) of the Aliens Act might only meet with reservations if it, together with other rules having an effect on asylum proceedings, were to undermine the effectiveness of judicial legal protection. There is, however, no indication of such a connection between the effects of this rule and the attribution of fault on the party of the attorney for the action or the preclusion of the procedure for review upon party protest; they neither aim at nor in fact lead to the restraining of the factual and legal review of the request for legal protection by a person seeking asylum. The absence of the procedure for review upon party protest is based on the concept of avoiding a lengthening of administrative proceedings and arriving as quickly as possible at judicial clarification of the legal effectiveness of the notice. The preclusion on appeals resulting from § 34(1) of the Aliens Act, in the first place, borne by the consideration that the courts of appeals should be relieved of those cases in which the court of first instance has unanimously declared the complaint to be manifestly ill-founded. This preclusion is also based on the feature that asylum proceedings often involve similar groups of typical cases in which both the actual circumstances and the legal underpinnings do not vary. These rules do not give rise to constitutional reservations. The attribution of fault on the part of the attorney does not evidence any special characteristics. The preclusion on appeals also does not violate the fundamental requirement of "equality of arms" in trial.

d) In addition, any factual difficulties experienced by asylum seekers in acquiring access to and a legal hearing before the courts, in selecting reliable counsel and in supervising him do not, under the Constitution, call for the exclusion on attribution of attorney fault in administrative proceedings for recognition of right to asylum.

Asylum proceedings only exhibit a special feature in this context in that they often involve foreigners lacking command over the German language. These difficulties stem from the nationality of the asylum-seeking foreigner, his culture sphere and his ties to this. But the special nature of asylum law or of legal protection for this does not, under the Constitution, call for a rule on attribution of attorney fault deviating from the general rule. It is therefore reasonable to expect a foreigner, as well as an asylum-seeking foreigner, to exercise greater care and effort occasioned by difficulties in communication -- at least to the limit of impossibility, which would be arrived at when a translator could not be secured within the relevant time limits -- without treating him in an unequal manner vis-à-vis nationals.

In this regard, noteworthy is the observation by the Federal Administrative Court that one can hardly speak of a lingual disadvantaging of asylum seekers, since there are numerous possibilities for acquiring aid and advice. Moreover, in typical cases of application for asylum, the applicant has already spent a good deal of time in the Federal Republic of Germany when the deadline on complaint against a notice of denial begins to run, a period of time that normally affords the applicant ample opportunity to orient himself and seek legal advice.

The rules found in §§ 60, 173 of the VwGO, together with § 85(2) of the ZPO must furthermore not be viewed in an isolated fashion. With respect to access to the court of first instance, it is significant here that with expiration of the deadline on filing of complaint under § 74(1) and (2) of the VwGO and its becoming legally effective, a notice of denial in asylum matters is accompanied pursuant to § 59 of the VwGO by a description of available legal remedies -- here, appeals complaints -- of the authority at which it is to be filed and of the deadlines on such remedies. These statutory provisions of legal protection is appropriate for expressly indicating to the affected person that his request for legal protection is subject to a deadline. Furthermore, there is usually also appended information on the attribution of fault on the part of the attorney. In view of the foregoing, the requirements of Art. 19(4), first sentence, of the Basic Law do not make it unreasonable to expect that the affected person make all efforts to observe the deadline if he wishes to resort to an appeal.

e) It has been asserted that a further special feature of asylum matters is that the procedure before the Federal Office and subsequent administrative court proceedings are of special importance for the realization of the right of asylum in that the individual asylum seeker is only able to enjoy a right of asylum by way of these proceedings. It is correct that Art. 16(2), second sentence, of the Basic Law does not evidence an express legal proviso. The right of asylum is basically only able to be exercised via legally regulated proceedings. The applicable state of the law does not, procedurally speaking, assume that each applicant is initially in possession of the right of asylum (which then must be "deprived"); rather, it first recognizes it following a formal act of determination to be obtained by the asylum applicant and, possibly, contested by him. The right of asylum is subject to a procedural reservation; apart from the filing of the application, it can only be claimed as a status following the obtaining of the act of recognition.

This does not give rise to constitutional objections. As is the case with numerous decisions on status, the legal system has a pressing interest in a formal act determining status. Such proceedings "regulate" but do not "restrict" the right of asylum; the observation is not altered by the absence of a legal proviso in Art. 16(2), second sentence, of the Basic Law.

Proceedings such as these that regulate the assertion of a basic-rights guarantee must, under the Constitution, be well-suited, appropriate and reasonable; this can also call for special structures deviating from general administrative proceedings. The legislature is endowed with wide discretion here with regard to the organization and procedure. Substantive basic rights only give rise in this respect to elementary, constitutionally indispensable procedural requirements. In this sense, procedural rules that lead to a denial of recognition despite political persecution must also be measured against Art. 16(2), second sentence, of the Basic Law. However, the realization of the right of asylum is not the sole purpose of the asylum proceedings: in addition to warding off unqualified requests for asylum, these also aid in legal certainty in the above-described sense for well-founded claims.

This initially applies to the recognition proceedings at the Federal Office. The notice of recognition is necessary and sufficient for bestowing recognition on the status of the asylum holder within the meaning of Art. 16(2), second sentence, of the Basic Law. The proceedings at the Federal Office therefore directly serve in realizing the right of asylum.

The administrative court proceedings likewise aid in the legal protection of the asylum seeker. It requires that the structure, interpretation and treatment of the court's procedural law transpire in the light of Art. 16(2), second sentence, of the Basic Law and other constitutional provisions; at the same time, however, extreme caution is called for in deriving from individual substantive basic rights and guarantees special rules for the (judicial) enforcement of these basic rights and guarantees that deviate from general procedural rules.

This is not merely prohibited because the Basic Law provides for the constitutional complaint as a special legal remedy for the protection of basic rights and similar freedoms; these are also to be respected in the structuring of procedural rules and in their interpretation and application in a given case. [xi] For proceedings centering on (alleged) violations of basic rights by public authority, this results from the special guarantee of effective legal protection under Art. 19(4), first sentence, of the Basic Law. This provision represents -- along with the guarantees of an independent judiciary, [xii] a lawful judge, [xiii] a hearing in accordance with the law in court, [xiv] and other requirements for court proceedings flowing from the principle of rule of law [xv] -- the central guarantee for judicial legal protection, including that of basic rights in proceedings before courts. The extent of effective legal protection is, of course, measured according to the substance of the right asserted as violated; it is this right whose protection is to be effectively guaranteed by Art. 19(4), first sentence, of the Basic Law and thus demands respect within the scope of Art. 19(4).  In addition, the procedural position of the parties to the proceedings, such as that of the accused in criminal proceedings, is influenced by substantive basic rights; for this reason, it calls for an interpretation and application of procedural law that is in harmony with these basic rights. [xvi] All of this does not, however, demand that the general court rules of procedure be tailored according to the right at issue. When the normative structure of court rules of procedure guarantee comprehensive review of the subject of the proceedings from a factual and legal standpoint and a type and effect of decision appropriate to the request for legal protection, then protective claim following from Art. 19(4), first sentence, of the Basic Law and from other substantive basic rights is satisfied. Apart from the problems that would arise with special procedural rules for each and every procedural situation, with basic rights thereby competing with one another, clarity, predictability and transparency of the instruments of judicial legal protection would be considerably reduced; this would ultimately run counter to the protection of basic rights. On the contrary, substantive basic rights and their protection are instead effectuated when the legal system makes available uniform, general basic types of court procedures with adequate review powers, decisional types and decisional effects in order to facilitate judicial legal protection.

Comparable to the Senate's advocation of this for conclusions drawn from the principle of rule of law, [xvii] it also applies here that concrete normative deductions may only be made from substantive basic rights for the structuring of court procedural law regarding the guarantees of Art. 19(4), first sentence, of the Basic Law and procedural basic rights when it is unmistakeably clear that the indispensable requirements of adequate legal protection are no longer able to be maintained.

It is not evident here that the provisions of the administrative court rules of procedure on legal remedies and other procedures were not sufficient for bestowing upon the administrative courts adequate review powers and decision-making authority in the sense of Art. 19(4), first sentence, of the Basic Law, such that the asylum applicant is afforded legal protection for the right he asserts under Art. 16(2), second sentence, of the Basic Law. It is not apparent that in the present context, the legislature should have conferred greater importance on the guarantee of Art. 16(2), second sentence, of the Basic Law than on other basic rights of elementary significance.

f) Furthermore, the circumstance that the applicant denied asylum did not have an effective opportunity to indemnify himself vis-à-vis his attorney for the consequences of neglect of deadline does not require a structuring of the administrative court proceedings in asylum matters deviating from the general provisions. Although a person unjustly denied asylum could proceed against his attorney with regard to costs and other economic detriments suffered, he must himself alone carry the essential consequences of non-recognition, particularly for his residency status, without the attorney having to render compensation.

The finality of the attribution of attorney fault for the party is, as correctly noted by the administrative court, not peculiar to asylum proceedings; in all non-property litigation, it is normally impossible for the party to obtain comparable compensation. This applies to both civil-law and administrative trials; [xviii] civil law and the law on civil procedure often deal with non-property legal relations and procedural subjects.

It is not possible to view the absence of adequate compensation possibilities as unique to asylum proceedings for the reason that this is not a procedural issue but rather a type of factual limit on the substantive law of damages. These legal consequences would only be constitutionally objectionable if they were to lead to unreasonable results, as is the case in criminal law.

g) However, even in view of the possible existential significance, the denial of right to asylum is not comparable to a criminal conviction.

Although the possible results of a denial of asylum may be of importance for the applicant's existence, they cannot be equated with punishment. In the first place, the denial does not necessarily mean that the affected party will not be allowed to remain in the Federal Republic of Germany, as long as concerns of the Federal Republic are not impaired by his presence here. [xix] In deciding on continued residency, the administrative authorities are required to consider all circumstances of relevance for this.

Even if continued residency is not allowed, § 14(1) of the Aliens Act prohibits deportation to a State the affected person's life or freedom is threatened on account of his race, religion, nationality, his affiliation to a certain social group, or due to his political convictions. In extradition proceedings as well, the court is precluded by law from being bound by the decision in the asylum proceedings. [xx] There remain, however, weighty economic and personal restrictions and detriments as possible consequences of a denial of asylum, although these are again not equivalent to a criminal conviction. In contrast to criminal proceedings, the State does not oppose the affected party with a criminal claim; the denial of asylum is not the intentional imposition of the sharpest sanction of the legal system to correct a violated right.

5.  The Senate does not fail to recognize that the attribution of fault on the party of the attorney for the action may represent hardship in some cases, since this deprives the affected parties of access to court or to further remedies, thereby spoiling the realization of justice in the individual case. The charged relationship between substantive justice in the individual case and legal certainty cannot be escaped. Within the scope of the legislature's commitments under Art. 19(4), first sentence, and Art. 16(2), second sentence, of the Basic Law, it also justifies legislative discretion to take into consideration the concerns of legal certainty in structuring judicial legal protection for asserted violations of right of asylum. The Federal Constitutional Court may not review such an evaluation and the rule made as a result for whether it is the best, most just or most purposeful; rather, it may solely review whether it remains within the bounds of the Basic Law's inviolable values and standards placed upon the legislature.

As a result of this review, it is not constitutionally objectionable when the legislature for reasons of legal certainty placed priority on the interest in a uniform rule of administrative court procedure. The interest in a general, clear, regulation of all administrative court proceedings according to broad, uniform standards also applying to civil trials was able to be treated by the legislature as having precedence to the reasons speaking in favor of a special rule for asylum proceedings, without, however, legal protection required by Art. 19(4), first sentence, of the Basic Law having been prejudiced.

This interest in a general, uniform rule is based on the general constitutional interest in legal certainty and legal clarity. It justifies the uniform application of rules on procedural deadlines, reinstatement possibilities and the attribution of attorney fault in this context. As correctly noted in opinions by the Senate of the Federal Administrative Court, specialization of administrative court procedures into various groups with respect to these rules would meet with substantial practical difficulties. It would bring with it the risk of internal contradiction and new inequalities difficult to justify. The situation would hardly be resolved by a mere separation of proceedings in asylum matters from other administrative proceedings. In such a case, other special rights would then require exceptional rules. A special rule with regard to the attribution of fault on the part of the attorney for the action in the event of neglect of a deadline would be extremely difficult to delineate. It was within the legislature's discretion to choose to avoid this.

In the area of administrative asylum proceedings as well, the rule is not without propriety with respect to the general principles of the law of representation. The party represented benefits from all advantages that he acquires by way of an agent. According to the general rules of representation, [xxi] the actions and declarations of the representative are directly effective for the party represented, even when they do not correspond to his interests or his own will. It is thus logical when the omission of such acts and declarations -- intentional or negligent -- are attributed to the party represented. When, for instance, the attorney is effectively able to irrenouncably dispense with a right of appeal for the party against his will and interests, it is only logical when this is treated as having been performed by the party himself. It is not at issue here where the general or specific limits of attributability lie under the law.

With respect to Art. 19(4), first sentence, of the Basic Law, it is finally important to note that legislature may direct the attribution of fault on the part of the attorney under §§ 60(1) and 173 of the VwGO, together with § 85(2) of the ZPO, in order to prevent possible abuse. Such possibilities for abuse may not be deemed as mere distant, atypical dangers but rather are -- due to the special qualities of the "evidence situation", here, the circumstances to be proved -- quite obvious: the circumstances often lie within the realm of the attorney and therefore are able to be purposefully influenced.

II.

The rules in § 173 of the VwGO and § 85(2) of the ZPO also do not meet with any constitutional reservations for asylum proceedings under other constitutional aspects.

1.  In addition to the requirements of Art. 19(4), first sentence, of the Basic Law, there do not result from Art. 16(2), second sentence, of the Basic Law any direct additional, further-reaching requirements for the structuring of the administrative asylum proceedings with respect to the attribution of fault on the part of the attorney for the action. These rules thus do not meet with constitutional reservations for administrative asylum proceedings with respect to Art. 16(2), second sentence, of the Basic Law.

2.  The Basic Law's principle of social justice also does not give rise to special requirements going beyond those in Art. 19(4), first sentence, of the Basic Law for the issue of attribution of fault on the part of the attorney in asylum proceedings before administrative courts.

3.  The rule at issue is not incompatible with general rules of public international law in the sense of Art. 25 of the Basic Law.

a) It is a long recognized general rule of the international law of aliens that the State of residency must provide an alien with adequate judicial legal protection. The extent of this protection includes giving the alien access to the courts in accordance with and within the boundaries of generally available recourse and having an impartial tribunal review and decide on his application for legal protection; further, there must be a minimum standard of procedural justice, in particular, a sufficient hearing must be granted and the proceedings must not be unreasonably delayed. Insofar as recourse to courts is provided, it must be accessible to nationals and aliens in like fashion. Even though an alien's legal protection must be equivalent to that of a national, this does not preclude special courts from deciding on the request for legal protection or special procedures from being used.

A comparable obligation on the State of residency arises under the minimum human-rights standard of general public international law, as has become increasingly evident in State practice since 1945, particularly in human-rights declarations and conventions of both a universal and regional variety. In a similar sense, the Swiss Federal Court has determined: [xxii] "It is a part of the essence of the modern constitutional state that in the area of administration of justice, aliens must be placed in a position equivalent to that of nationals and that they . . . even without special agreements by treaty, are provided with the same claim to legal protection as nationals."

b) The rules in § 85(2) of the ZPO and § 173 of the VwGO are compatible with these requirements of public international law.

They apply equally to aliens and nationals alike; they represent neither an inappropriate nor an unreasonable impediment to legal protection made available by the administrative court rules of procedure; this legal protection satisfies the minimum standard of procedural justice. Purely factual difficulties that might arise for an alien for lingual reasons or because he is unfamiliar with the living conditions and legal system of the State of residency are not charged under public international law to the State of residency; these difficulties do not place the State under any special obligations to take precautions with regard to legal assistance or legal protection. In addition anyone who applies for a right of asylum under Art. 16(2), second sentence, of the Basic Law and thus requests the protection and privileges of the German legal system must, under public international law, accept this legal system as it applies, including the procedural precautions for guaranteeing legal certainty.

Judges: Zeidler, Rinck, Wand, Rottmann, Niebler, Steinberger, Träger, Mahrenholz

[xxiii]

[i] BGBl. I, p. 3281.

[ii] BVerfGE 46, 166, 177 ff.

[iii] Arts. 20(3), 28(1), first sentence, of the Basic Law; cf. BVerfGE 2, 380, 403 ff.; BVerfGE 7, 89, 92-93; BVerfGE 13, 261, 271; BVerfGE 22, 322, 329; BVerfGE 27, 297, 305-06; BVerfGE 35, 41, 47; BVerfGE 45, 142, 167; BVerfGE 47, 146, 161, 165.

[iv] BVerfGE 41, 23, 26.

[v] Cf. BVerfGE 47, 146, 165.

[vi] Cf. § 45 of the Aliens Act.

[vii] Cf. §§ 28 ff., in particular, §§ 33(1), 36(1) of the Aliens Act.

[viii] Cf. also § 29(2), first sentence, of the Aliens Act.

[ix] The Committee previously had three members; cf. § 30 of the Aliens Act; § 2 of the 2 d Act to Accelerate Asylum Proceedings.

[x] Exclusion of appeal in the event of obvious lack of foundation.

[xi] Art. 1(3) of the Basic Law.

[xii] Art. 20(2), (3), 92 and 97 of the Basic Law.

[xiii] Art. 101(1) of the Basic Law.

[xiv] Art. 103(1) of the Basic Law.

[xv] Cf. BVerfGE 57, 250, 274-75.

[xvi] Cf. BVerfGE 57, 250, 275.

[xvii] Cf. BVerfGE 5, 250, 276.

[xviii] Cf. BVerwGE 49, 252, 257 -- conscientious objection proceedings.

[xix] Cf. § 2 of the Aliens Act.

[xx] Cf. § 45, second sentence, of the Aliens Act.

[xxi] Cf. § 85(1), of the ZPO.

[xxii] BGE 41 I 148.

[xxiii]

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