Constitutional judges remain silent on Syria deployment of the Bundeswehr, which is unconstitutional and incompatible with international law, and deny the German population any protection against the danger of world war and against the jihadist „blitzkrieg“, which has been prognosticated for Germany and Europe for 2016
Unser Politikblog | 12.07.2016
After the press conference of the 12.06.2016 in Dresden, the plaintiff now addresses herself to the public also in writing.
|photo: (c) Unser Politikblog (photo shows the court room|
of the Constitutional Court
At the 17.03.2016, the civil and human rights activist Sarah Luzia Hassel-Reusing has filed a Constitutional complaint (file number 2 BvR 576/16) against the resolution by the Bundestag of the 03.12.2015 (file number 18/6866) on the Syria deployment of the Bundeswehr. The seven applications of the complaint have demanded to prohibit the German Syria deployment, to impose on the members of the Bundestag (as far as foreign and safety policy are concerned) appropriate criteria for the self investigation of their conscience prescribed in art. 38 par. 1 s. 2 Basic Law, to biometrically register all immigrants, who have come to Germany since 2015, to appropriately limit the power of think tanks over Germany in the area of foreign and safety policy (in order to protect the Basic Law and the UN Charter), to restore the ability of Germany to defend its whole territory against the danger of a jihadist attack, to completely limit the prescriptions of the TEU on safety policy with an interpretation in conformity with the Basic Law and with the UN Charter, and to oblige, for that purpose, the Federal Government to get an advisory opinion by the ICJ, or to state, according to art 53 VCLT, the voidness of the TEU because of incompatibility with the UN Charter.
The Constitutional Court has made provisions in the Lisbon judgement to limit the Common Foreign and Safety Policy (CFSP) of the EU, which have made possible the enactment of the Lisbon Treaty without the TEU getting void. Those provisions have been disregarded by the EU Council of Ministers (incl. by the German Defence Minister) at the 16./17.11.2015 (file number 14120/15) and by the Bundestag at the 03.12.2015 (file number 18/6866).
The complaint has been based on the human dignity (art. 1 par. 1 Basic Law) in connection with the peace principle (art. 1 par. 2 Basic Law), on the basic right to vote (art. 38 Basic Law), on the basic rights to life, to physical integrity, and to freedom (art. 2 Basic Law), on the function reservation (art. 33 par. 4 Basic Law), and on the universal human rights to security (art. 9 ICCPR) and to health (art. 12 CESCR).
At the 12.04.2016, the 3rd Chamber (Constitutional judges Prof. Dr. Huber, Müller, and Dr. Maidowski) of the 2nd Senate of the Constitutional Court have unanimously concluded not to admit the Constitutional complaint and referred for that to art. 93a and 93b BVerfGG. An explanation for the non-admittance has not been given. The non-admittance has, according to the post stamp, been sent at the 14.04.2016, and it has reached the post box in the morning of the 15.04.2016.
According to art. 93d par. 1 s. 3 BVerfGG, a resolution on a non-admittance does not have to be explained. Art. 93a BVerfGG determines as a „must“ prescription, depending on which conditions a Constitutional complaint has to be admitted, namely if there is a personal affectedness regarding basic rights, or if the decisive legal questions are furthering the Constitutional jurisdiction. If a Constitutional complaint fulfills these conditions, it has to be admitted; if it does not fulfill them, it may not be admitted.
What the own, current, and immediate affectedness regarding basic rights, as a precondition of the admittance of a Constitutional complaint, means, has been explained in no. 78 of the aviation safety law judgement of the 15.02.2006 (file number 1 BvR 357/05). The condition of the own and current affectedness is basically fulfilled, if the plaintiff explains, that she, with a certain probability, is affected in her basic rights by the measures based on the tackled prescriptions. Immediate affectedness means, that the prescriptions change the legal position of the plaintiff already before any act of their implementation. This condition is also fulfilled, if the plaintiff cannot or cannot reasonably complain against an act of its implementation. According to these standards, the personal affectedness regarding the aviation safety law has been confirmed. The then plaintiffs had credibly explained, that they often use civil air planes for private and professional reasons.
The fundamental importance for Constitutional law means the furthering of the Constitutional jurisdiction, i. e., which of the invoked decisive legal questions have not yet been decided by the Constitutional Court, or which have to be investigated again because of a changed situation or because of new legal arguments.
So a non-admittance, even if it is issued without any explanation, always implies the silent allegation, that none of the invoked affectednesses regarding basic rights and human rights, or none of the invoked decisive legal questions for the furthering of Constitutional jurisdiction were given.
So the non-admittance of the 12.04.2016 implies the silent allegation, that the increase of the danger of escalation to a thermonuclear war because of the incomplete coordination with the countries (particularly with Syria and Russia), which are militarily involved in Syria, and because of the carde blanche enablement of the inclusion of German soldiers in joint staffs included in the resolution of the 03.12.2015, even though the painful and defacing health damages connected to a thermonuclear war, would neither mean an affectedness of the plaintiff regarding the human dignity (art. 1 par. 1 Basic Law) in connection with the peace principle (art. 1 par. 2 Basic Law), nor regarding the basic rights to life and to physical integrity (art. 2 par. 2 Basic Law), nor regarding the human right to health (art. 12 CESCR).
The Constitutional complaint, in contrast to that, has explained, that Isis and most probably also Al Qaida, on the basis of their interpretation of the Islamic Revelation, actively strive to provoke, still before 2020, a world war beginning close to the Syrian town Dabiq, and that they do this particularly by involving the armies of as many countries as possible into the Syria conflict, so that they get into fighting against each other. In addition to that, it has been shown, that the Syria conflict has, at least two times, already nearly led to world war. At the 31.08.2013, the information regarding the warnings by Russia and by China have reached His Excellency, US President Barack Obama, just in time, so that the air attack on Syria scheduled for the 01. or 02.09.2013, as an answer to the chemical weapon deployment in Ghouta (Syria), which had been hastily and incorrectly attributed to the Syrian government, has been cancelled early enough. In the end of 2015, the downing by Turkey of a Russian jet, which had violated the Turkish airspace only for a short time, has not escalated to world war only because of Russian modesty.
In addition to that, the non-admittance implies the silent allegation, that the plaintiff was affected by the following points neither regarding the human dignity (art. 1 par. 1 Basic Law) in connection with the peace principle (art. 1 par. 2 Basic Law) nor because of ultra-vires (excession of competences and so cutting of the democratical chain of legitimation from the voters to the members of parliament, and further to the government, and to international organizations) regarding the basic right to vote (art. 38 Basic Law):
-the consent by the German government to the French application to state the case of mutual defence according to art. 42 par. 7 TEU, even though the mutual defence clause still had not been made valid according to the procedure prescribed in art. 42 par. 2 subpar. 1 TEU (incl. need for consent in the Bundestag and for ratification, no. 255 + 389 + 390 Lisbon judgement), and so the EU, as a result of that, is still no system of mutual collective security according to art. 24 par. 2 Basic Law (no. 254 + 390 Lisbon judgement)
-the consent by the Federal Government to the French application to state the case of mutual defence according to art. 42 par. 7 TEU, without prior requesting the constitutive consent of the Bundestag, and so violating also the parliamentary reservation according to art. 115a Basic Law (no. 254+255 +381+382+387+388 Lisbon judgement)
-the resolution by the Bundestag of the 03.12.2015 on the Syria deployment of German forces, even though the resolution of the 16./17.11.2015 on the case of mutual defence is void already because of inner contradictions
-the consent by the Federal Government on the French application to state the case of mutual defence according to art. 42 par. 7 TEU, even though there is, without an „armed attack“, neither a case of mutual defence according to art. 42 par. 7 TEU nor of self defence according to art. 51 UN Charter, even though there is no resolution according to art. 42 UN Charter for a military intervention, and no (regarding the prohibitions of aggressive war according to art. 2 par. 4 UN Charter and to art. 26 Basic Law necessary) consent by the Syrian government
-the resolution by the Bundestag of the 03.12.2015 on the Syria deployment of German forces, even though there is, without an „armed attack“, neither a case of mutual defence according to art. 42 par. 7 TEU nor of self defence according to art. 51 UN Charter, even though there is no resolution according to art. 42 UN Charter for a military intervention, and no (regarding the prohibitions of aggressive war according to art. 2 par. 4 UN Charter and to art. 26 Basic Law necessary) consent by the Syrian government
-the resolution by the Bundestag of the 03.12.2015 on the Syria deployment of German forces, even though it takes place outside any system of mutual collective defence (art. 24 par. 2 TEU), to which Germany belongs, since the EU, the internationale alliance in the fight against Isis, and single other countries do not fulfill the conditions of art. 24 par. 2 Basic Law (no. 254+390 Lisbon judgement)
-the resolution by the Bundestag of the 03.12.2015 on the Syria deployment of German forces, because it does not have any sufficient material legal basis in the Basic Law and so violates art. 87a par. 2 Basic Law.
The size of the escalation risks is shown also by the protest published at the 15.06.2016 by the Syrian Foreign Ministry regarding the deployment of American, German, and French troops in Syria without any coordination with the Syrian government, which is disputed by the German Federal Government (Sana article „Syria condemns presence of French and German special forces in Ain Al-Arab and Manbij“ of the 15.06.2016, RT Deutsch article „Deutsche Spezialkräfte im Kampfeinsatz in Syrien? Damaskus erzürnt, Berlin dementiert“ of the 16.06.2016). It seems, also in view of the joint staffs with other countries, carde blanche enabled in the Syria resolution by the Bundestag (file number 18/6866) of the 03.12.2015, completely intransparent, if the German government is still completely informed, under whose control the German soldiers are deployed in connection with Syria.
The non-admittance, in addition to that, silently implies, that the expression in the basic right to vote, that the members of the parliament are subjugated only under their own conscience (art. 38 par. 1 s. 2 Basic Law) either did not contain the claim invoked by the plaintiff, of her as a voter, that the members of the Bundestag have, at least in so sensible areas like foreign and safety policy, to do a self-examination of their conscience, i. e. to apply their conscience. Or it implies the silent allegation, that this right was not violated by the resolution by the Bundestag of the 03.12.2015, even though the members of the parliament have taken themselves only 2 days to decide on the combat deployment; had the members of the Bundestag taken themselves the time needed for a self-examination of their conscience, then they would have noticed the world war risks in connection with the deployment as well as the violations of art. 115a Basic Law (because of missing constitutive consent to the the statement of the EU case of mutual defence), and that the EU clause of mutual defence (art. 42 par. 7 TEU) had not yet been presented to the members of the Bundestag for their consent according to the provisions of art. 42 par. 2 subpar. 1 TEU, in order to make it applicable at all.
In addition to that, the non-admittance implies the silent allegation, that the plaintiff was not affected in her basic right to vote (art. 38 Basic Law) by the preforming of the resolution of the 03.12.2015 on the Syria deployment of the Bundeswehr by private actors in the way of the playing down of the Muslim Brotherhood (which according to Foreign Affairs strives for a global caliphate, and according to Voltairenet has created the ideology of Al Qaida), of disattracting from the overwhelming composition of the Syrian „rebels“ of foreign jihadists (95% according to Asia Times), of disattracting from the question of the legality of a „regime change“ in Syria, and of the classification of Syria as a „disturber state“.
The non-admittance, furthermore, implies either the silent allegation, that Germany has not been put more into the focus of Isis because of the direct military involvement of the Bundeswehr, than it had been before the resolution of the 03.12.2015. Or that the plaintiff nevertheless was affected neither regarding the human dignity (art. 1 par. 1 Basic Law) in connection with the peace principle (art. 1 par. 2 Basic Law) nor regarding the human right to security (art. 9 ICCPR) by the missing biometrical registration of hundredthousands of people having immigrated to Germany since 2015 and by the resulting missing comparison particularly with the card index available to Great Britain of 22,000 presumed Isis members, and with the 9,000 stolen and falsified passport identities detected by Macedonia along the main refugee routes, and by the missing ability of Germany to defend its whole territory against the jihadist „blitzkrieg“ prognosticated for 2016 in Germany and Europe.
Enlightening on the issue non-admittance is also a dissenting opinion by the then Constitutional judge Prof. Dr. Lübbe-Wolff to the decision by the Constitutional Court of the 14.01.2014 regarding OMT, in which she exposes, that the Constitutional Court applies, besides legal foundations further „techniques to avoid overstraining judicial power“ (no. 4) like particularly „the choice between admissibility criteria and reduced intensity of review as instruments of judicial restraint“.
She has, in no. 9 of her then dissenting opinion, argued in favour of the use of non-admittance criteria without any explicit legal basis in art. 93a BVerfGG, as follows:
„The more judicial restraint is required, the more preferable is it to exercise such restraint by way of refusal to go into the merits (political question doctrine, criteria of admissibility) rather than by way of applying restrained standards of review (recognition of margins of appreciation, substantive obviousness criteria and the like). That is because the former path is the path of greater restraint. Dealing with the substance of the case is altogether avoided here, while the mere application of restrained standards of review will typically result in some kind of benediction, although reduced in scope, of the object of judicial review.”.“
If one follows the words by Mrs. Prof. Dr. Lübbe-Wolff, then one has not gone into the merits at the 12.04.2016, and then Germany's participation in the increasing of the danger of world war and the omission of the Federal Government to appropriately protect the population against the jihadist „blitzkrieg“ prognosticated for 2016 also for Germany, have not been actively been given „benediction“.
But that is cold consolation for the meanwhile over 7,391,068,000 human beings, which now, in comparison with a situation of orderly treatment, will, with a significant higher probability, be affected by a nuclear war, which including radiation syndrome, cancer, and collapse of the ecosystems, would survive noone. Or for the relatives of the victims of jihadist attacks. The „gentlemen“ in Karlsruhe should be obliged to explain to every single of them, why they, hidden behind the anti-transparency-clause art. 93d par. 1 s. 3 BVerfGG, additionally to the conditions prescribed by law (own, current, and immediate affectedness and furthering of the Constitutional jurisdiction) for the admittance of a Constitutional complaint, simply invent further ones or even reject the admittance of valid Constitutional complaints without any application of the material prescriptions for that.
To the imaginarily threatening functional „overstraining of judicial power“ is de facto contributing particularly art. 3 par. 4 s. 1 BVerfGG, according to which the „professional occupation“ „of a teacher of law at a German university“ is compatible „with the occupation as a judge“. Art. 3 par. 4 s. 2 BVerfGG prescribes „The occupation as as judge is preeminent to the occupation as a teacher at a university“, but that can, as well as art. 93a BVerfGG, de facto be levered out. Because the anti-transparency-clause art. 93d par. 1 s. 3 BVerfGG has, since 1993, created an enduring temptation, to illegally reject valid, but labour-intensive (which would reduce the time left to the judges for their extra occupations) or in other way unconfortable Constitutional complaints, without giving any explanations for that.
We do not have a „law bankruptcy“ in Germany, but a, in comparison to the total population, small amount of concrete people at some key positions, which are not able or not willing to fulfill their Constitutional tasks.
In 1969, the legislator has, as a counterbalance to the „emergency laws“, very consciously secured the possibility of everyone to file a Constitutional complaint in art. 93 no. 4a Basic Law.
Constitutional judge Prof. Dr. Huber has, in addition to that, advertised in the interview „Keine europäische Wirtschaftsregierung ohne Änderung des Grundgesetzes“ („no European economical government without change of the Basic Law“) of the Süddeutsche Zeitung of the 19.09.2011, on the occasion of the Fiscal Compact, for the idea, that the German people should,for purposes of power transfer towards the EU, consent in a referendum into the opening of the eternity guarantee (art. 79 par. 3 Basic Law), that means to sacrifice, in relation to the EU „economic government“, any protection by basic rights and structure principles. He has called his idea a „revolution“ - that term perfectly fits, because the insertion of the eternity guarantee (art. 79 par. 3) into the Basic Law has been achieved by Dr. Thomas Dehler (FDP) in the Parliamentarian Council within the works of the creation of the Basic Law with the argument, that the eternity guarantee would wrench „the mask of legality“ from a revolutionary.
From such an active revolutionary acting against the order of the Basic Law, it may seem coherent, to deny the application of basic rights like human dignity (art. 1 par. 1 Basic Law) and life (art. 2 par. 2 Basic Law) even in the case of an illegal deployment of the Bundeswehr, which contributes to the increase of the danger of a world war. More and more the question arises, whom such a „revolution“ shall benefit. Hardly the EU, for the resolution on the case of mutual defence (file number 14120/15) of the 16./17.11.2015 by the EU Council of Ministers, which the resolution by the Bundestag (file number 18/6866) of the 03.12.2015 refers to, is an application of art. 42 TEU, which is incompatible with the UN Charter, so that the question of the voidness of the TEU according to art. 53 VCLT for incompatibility with the UN Charter, which belongs to the „ius cogens“, arises. Had the Constitutional Court treated 2 BvR 576/16 orderly, then it would have set the necessary limits to the EU military deployment according to the UN Charter and so would have removed the risk to the existence of the EU. The non-admittance, in contrast to that, lets the problem become bigger and bigger, since it can now be brought at any opportunity before the Constitutional Courts of EU member states, or be brought by states before the ICJ, if the EU does legally still exist at all. That can be put on the table again, e. g., on the occasions of EU military deployments and of EU trade treaties. We have the same situation, because of the behaviour of the same senate, since the 01.05.2013 for the TFEU, and one has seemingly, despite the Ukraine crisis, learned nothing from that. The existence of the EU relies on art. 1 TEU, so that the establishment of the voidness of the TEU would be like 28 Brexits at one time.
Constitutional complaint of the 17.03.2016
non-admittance of the 12.04.2016
Bundesverfassungsgerichtsgesetz (BVerfG, the law on the Constitutional Court)
OMT decision of the 14.01.2014