HEADNOTE:
On the Federal Government's discretion in granting protection against foreign States.

Order of the Second Senate of 16 December 1980 pursuant to para. 24 BVerfGG -- 2 BvR 419/80 --
in the proceedings on the constitutional complaint of Mr Rudolf Hess, Allied Prison, against a) the Act establishing the federal budget for the financial year 1980 (Budget Act 1980) of 21 December 1979 - BGBl. I, p.2308 -, b) the judgment of the Higher Administrative Court of Land North-Rhine Westphalia of 14 May 1979 - I A 615/78-, c) the failure to set a date for an oral hearing of the appeal on points of law against judgment b) by the Federal Administrative Tribunal

DECISION:
The constitutional complaint is dismissed.

EXTRACT FROM GROUNDS:

A.

-I.

1. The complainant, born in 1894, was after 1933 "Deputy Führer of the NSDAP" and Reichsminister without portfolio. In May 1941 he flew as "parlementaire by his own resolve" to Britain, seeking to bring about a peace agreement between the German Reich and the United Kingdom. He was arrested there, conveyed by the British government to Nuremberg in October 1945 and brought as one of the accused before an International Military Tribunal. This Tribunal had been formed by the main victor powers of the Second World War, pursuant to Article 1 of the London Agreement between the United States of America, the French Republic, the United Kingdom of Great Britain and Northern Ireland and the Union of Soviet Socialist Republics of 8 August 1945, to which a further 19 parties later acceded (cf. Trial of the Major War Criminals before the International Military Tribunal, vol.1, p.8ff. [1947]). It was for the prosecution and punishment of those persons accused as war criminals of the Axis powers whose offences had no particular geographical location (article 1 of the Agreement). The constitution, jurisdiction and powers of the Tribunal were set out in the Charter of the International Military Tribunal annexed to the London Agreement (loc.cit., p.10; hereinafter Charter) (Article 2 of the Agreement).

2. By decision of 30 September and 1 October 1946 the Tribunal pronounced the complainant guilty of crimes against peace (Article 6(a) of the Charter) and condemned him to lifetime deprivation of freedom. He was acquitted of the accusation of war crimes (Article 6(b) of the Charter) and crimes against humanity (Article 6(c) of the Charter) (cf. Trial of the Major War Criminals before the International Tribunal, vol.XXII, p.411ff., 527ff., 588).

3. To enforce the Tribunal's decisions, Allied Headquarters Berlin, on the orders of the Control Council for Germany, made available the prison in Berlin-Spandau as Allied prison (cf. Article 29 of the Charter). Supreme executive power over the prison was initially with the Allied Military Command. Following the Soviet representative's withdrawal from the Command on 1 July 1948, Four-Power administration and supervision of the prison continued to exist and the Soviet authorities continued to occupy their position.

....

4. In July 1947 the complainant was transferred to the Allied prison in Spandau and has since then been in custody there. Following release of the last fellow prisoner on 1 October 1966, the complainant is the last inmate of the prison.

....

II.

In his constitutional complaint the complainant petitions

I. That the judgment of the Higher Administrative Tribunal of Land North Rhine-Westphalia of 14 May 1979 be revoked and the Federal Republic of Germany be sentenced, through its organs:

the Federal President,
the Federal Chancellor,
the Federal Minister for Foreign Affairs,
the Federal Minister for Justice

1. to declare and to publish that the continuation of the now 38-year long incarceration of the plaintiff Rudolf Hess, now in his 86th year, the last 13 of them in solitary confinement, infringes binding international law and fundamental human rights;

2. to take all appropriate steps with the four guardian powers towards his immediate liberation, in particular with the guardian power Great Britain, which delivered Rudolf Hess to the International Military Tribunal in Nuremberg;

3. in particular, to petition the United Nations (UNO) without delay
a)that the continuation of the 38-year incarceration of the plaintiff, the last 13 years of them in solitary confinement, be censured and condemned by the General Assembly for infringement of binding international law and fundamental human rights;
b)that the General Assembly direct the four guardian powers to liberate the plaintiff from custody forthwith;

4. to petition the European Court of Human Rights in Strasbourg to censure and condemn the 38-year incarceration of the plaintiff, the last 13 years of them in solitary confinement, for infringement of the Convention for the protection of Human Rights and Fundamental Freedoms;

5. to bring the complainant's case before the International Court of Justice in The Hague, with the petition for a finding that the complainant's incarceration cannot be justified under Article 107 of the United Nations Charter, and further petition that the four guardian powers, namely the United States of America, the French Republic, the United Kingdom of Great Britain and Northern Ireland and the Union of Soviet Socialist Republics be sentenced to release the former Reichsminister Rudolf Hess from the military prison in Berlin-Spandau forthwith.

II. that the Federal Republic of Germany be prohibited from making further payments to the four guardian powers (the United States of America, the French Republic, the United Kingdom of Great Britain and Northern Ireland, the Union of Soviet Socialist Republics) for purposes of enforcement of the judgment of the International Military Tribunal of 1 October 1946, in particular for maintaining Spandau Allied Prison in Berlin;

III. to find that the Act establishing the federal budget for the financial year 1980 of 21 December 1979 (BGBl. 1979 I, p.2308) is null and void insofar as it assigns State expenditure to the administration and maintenance of the Allied Military Prison in Berlin-Spandau;

IV. to find that the failure to date to set a term for the oral hearing of the appeal on points of law against the judgment of the Higher Administrative Court of 14 May 1979 by the Federal Administrative Court infringes the fundamental right to judicial legal protection.

The complainant objects to infringement of Articles 1, 2, 19(4), 101, 103 and 104 Basic Law.

....

III.

....

The Federal Government did not go into whether for the newer constitutional complaint the precondition for a decision by the Federal Constitutional Court was present. It pointed to the fact that it had since continued to take all suitable steps towards the complainant's release with the Four Powers; it would continue to do so.... In March 1979 the Federal President had, in a letter to the four heads of State of the guardian powers, sought that liberation on humanitarian grounds. In October 1979 the Federal Minister for Foreign Affairs had put the same request in a letter to his Soviet counterpart. The three Western guardian powers were open to the human aspect of the Hess case and had in turn sought to secure the Soviet Union's assent to release. In view of the Four-Power Agreement, however, they had been unable to bring about the complainant's immediate release against the will of the Soviet Union. Only the Soviet Union was opposing efforts at release.... The Federal Government would nonetheless press for the complainant's release.

B.

The constitutional complaint is in part inadmissible and in part unjustified.

I.

The constitutional complaint is inadmissible insofar as it is directed against the Act establishing the federal budget for the financial year 1980 (Budget Act 1980) of 21 December 1979 (BGBl. I p.2308). The complainant is to that extent not entitled to complain.

1. The precondition for admissibility of the constitutional complaint against an Act is in principle that the complainant himself be presently and directly affected in his fundamental rights by the Act. Should the Act legally necessitate for its implementation a special implementing Act effected by the will of the executive power, then direct effect is lacking (BVerfGE 1, 97 [101ff.]; consistent case law).

2. The complainant does not have fundamental rights directly affected by the establishment of individual items of expenditure for occupation costs in Berlin made pursuant to para. 1 of the Budget Act 1980 in the Federal budget plan for the financial year 1980 (Individual plan 35, Chapter 3502, Title 429 01, 518 03 and 812 02). It need not be gone into whether an individual can at all have rights directly affected by the establishment of expenditure items in the budget plan. As a rule the budget plan does not establish any legal effect in relation to the individual. It merely empowers the executive to incur expenditure and enter into commitments (cf. para. 3(1) of the Federal Budget Ordinance); claims or obligations are neither established not quashed by it (para. 3(2) of the Federal Budget Ordinance).

The Federal Republic of Germany is not responsible constitutionally or in international law for the deprivation of liberty imposed on the complainant, neither in origin nor for its duration or mode of execution; nor does it imputably collaborate in that measure by assuming occupation costs in Berlin.

The detaining powers are, at any rate not exercising their power, exercised in relation to implementation of the measure imposed on the complainant, in virtue of a power deriving from the Federal Republic of Germany. The Three Powers, by Article 2, first sentence, of the Convention on relations between the Federal Republic of Germany and the Three Powers of 26 May 1952, in the version of 23 October 1954 (BGBl. 1955 II p.305), explicitly retained "the rights and the responsibilities, heretofore exercised or held by them, relating to Berlin and to Germany as a whole". The Federal Republic of Germany, while it accepts the measures imposed by the Tribunal, their implementation and the occupation costs asserted thereunder as a consequence of German defeat, does not thereby collaborate in the continuation of the deprivation of liberty nor in the conditions of custody to which the complainant is subject. This acceptance does not however constitute any recognition in international law of this measure or its implementation. Rejection of assumption of costs for the Allied prison in Spandau by the Federal Government would, with likelihood bordering on certainty, change nothing here.

The Federal Constitutional Court cannot accordingly, in this connection, decide the question whether - particularly in regard to the complainant's state of health and other circumstances - continuation of the deprivation of liberty infringes international law of occupation or the minimum standard of human rights binding as international jus cogens, as the complainant alleges.

3. Insofar as the actions of Berlin agencies and authorities are in question, the Federal Constitutional Court does not at present exercise its jurisdiction, having regard to the Three Powers' reservations in Article 2, first sentence, of the General Treaty (cf. BVerfGE 1, 70 [73]; 2, 181 [201]; 7, 190 [192]; 19, 377 [385]; 20, 257 [266]).

II.

1. Insofar as the constitutional complaint is directed against the judgment of the Higher Administrative Tribunal, it is - presupposing its admissibility - unjustified.

....

b) The Higher Administrative Court's judgment does not infringe fundamental rights of the complainant.

The Higher Administrative Tribunal has not failed to see that agencies of the Federal Republic of Germany, in particular the Federal Government, are constitutionally obliged to a duty to protect German nationals and their interests against foreign States.... It has further rightly taken it that the Federal Government is due broad discretion in respect of the question whether and in what way it guarantees protection against foreign countries, and that the administrative courts have consequently confined themselves to testing the Federal Government's acts and omissions for errors of discretion. This view is in line with the Federal Constitutional's Court's case law according to which, particularly in the foreign policy sphere, the Federal Government, like all other State organs called on for political action, is in general granted broad room for political discretion (see BVerfGE 40, 141 [178]).

The breadth of the discretion in the foreign sphere has its basis in the fact that the shaping of foreign relations and occurrences cannot be determined by the will of the Federal Republic of Germany alone, but is in many ways dependent on circumstances beyond its determination. In order to make it possible to secure the various political objectives of the Federal Republic of Germany in the context of what is permissible constitutionally and in international law, the Basic Law grants the organs of foreign power very broad room for manoeuvre in their assessment of situations of foreign-policy relevance, like the expediency of possible action.

...

The Federal Government has set forth, in the proceedings before the Administrative Court and the constitutional complaint proceedings, that it has already taken major steps to bring about the release of the complainant, whose arrest is outside its sphere of power; it will continue to make corresponding approaches to the detaining powers.... The circumstance alone that the Federal Government's steps to date have not been able to secure the complainant's release does not directly lead to a constitutional obligation on the Federal government now to take particular other measures of possibly broader scope. It must be left to its foreign-policy assessment and evaluation how far it regards other measures as appropriate and - with particular regard to the interests of the complainant himself and those of the generality - as advisable.... Having regard to the broad discretion allowed it, there can be no constitutional objections to the Federal Government regarding as inadvisable the approaches to the United Nations Organization advocated by the complainant in the appeals proceedings. Its assessment that such steps would not promise success cannot - particularly taking the attitude of the United Nations themselves into account - be regarded as a failure of discretion.

It need not be gone into in this connection whether the Federal Government's legal view as to the applicability of Article 107 of the United Nations Charter is right in relation to the situation concerned. Even a legal view that the Federal Government itself relied on in testing the conditions of discretion and exercising its discretion in the sphere of protection against foreign countries in an individual case that was in the view of a German court wrong in international law would not by itself be able to establish the wrongness of the exercise of discretion. The present international legal order largely lacks institutional provisions, such as obligatory international jurisdiction (cf. Art. 36 of the Statute of the International Court of Justice); ... whereby the correctness of legal views could be bindingly established in a case of dispute. The assertion by a State of its own legal viewpoint has therefore much larger scope at international level than in a municipal legal system in which courts establish the law bindingly on the State too. In view of this state of affairs, it is of essential importance for the upholding of the interests of the Federal Republic of Germany that it appear at international level with a single voice, upheld by the competent organs of external power. Having regard thereto, great reticence is incumbent on the courts in assessing any legal views of those organs that may be wrongful in international law as failures of discretion. This ought to be taken into account at most where adoption of the legal view in question constituted arbitrariness towards a citizen, and could therefore no longer be understood from any reasonable viewpoint, even in foreign-policy terms. This is not the case here.... It is not a matter for the courts to put their assessment of possible effects of such steps at international level in the place of the assessments by the organs of external power. That the Federal Government's assessment can no longer on any rational view be seen as reasonable, even having regard to the objects of constitutional protection of the complainant that are at stake, cannot be established.

2. The constitutional complaint is also otherwise unjustified.

...

Judges: Zeidler, Rinck, Wand, Hirsch, Judge Rottmann, Dr.Dr.h.c.Niebler was unable to be present for signature, Zeidler, Steinberger, Träger

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