46 BVerfGE 16 (1977)

Relevant Laws
GBL Article 2.2.
Everyone shall have a right to life and to inviolability of his person.

GBL Article 3.1.
All persons shall be equal before the law. (minor importance for this case)

[Facts:

This case was brought to the Federal Constitutional Court by Hanns Eberhard Schleyer, the son of the President of the German Federation of the Industries, Dr. Hanns-Martin Schleyer, acting on behalf of his father. The respondents were the Federal Government and four German states.

Dr. Hanns-Martin Schleyer was kidnapped and his four aides killed by terrorists who threatened to "execute" their hostage if the Federal Government failed to comply with their demands. The main demand was that the Federal Government releases eleven named terrorists from prison and guarantee their safe departure out of the country. When the Federal Government denied to comply with the terrorists' demands, Hanns Eberhard Schleyer, acting on behalf of his father, petitioned the Federal Constitutional Court to issue a temporary injunction to force the Federal Government to release the named prisoners in order to avert the immediate danger to the life of Dr. Hanns-Martin Schleyer. The son argued that the duty of the state to protect life, as mandated in Article 2.2. of the Basic Law, obliges the Federal Government to comply with the terrorists' demands. Furthermore, he argued that the state authorities may not sacrifice his father's life for the protection of some other legal interest of higher value because life itself is the highest legal value. In addition, the son reasoned that his father is protected by Article 3.1. of the Basic Law, which mandates that all persons are equal before the law and thus entitled to equal protection by the state. Since in the earlier hostage crisis of Peter Lorenz, the state gave in to kidnapper's demands and released prisoners, pleaded the son, the state is now prevented from not complying with the terrorists demands. The court went on to describe the respondents' arguments. The respondents pointed out that the release of the eleven prisoners may cause significant harm in the future to the Basic Rights of others and mentioned the negative experience of the Lorenz case. Moreover, the respondents argued that the terrorists aimed at undermining the entire legal system and therefore pose an especially grave threat to the entire legal order. Finally, the respondents expressed the opinion that the case at hand does not offer one correct solution from a constructional perspective. In contrast, the responsible state organs need some degree of discretion in judging and deciding difficult cases and the Federal Constitutional Court is called upon to exercise judicial self-restraint.

Issue:

May the Federal Constitutional Court issue binding guidelines to other state authorities interfering with their decisions how to protect Basic Rights?

Holding by the First Senate:

No, it may not. The motion for a temporary injunction is rejected.

Discussion:]

C.

The review determines that the motion [for a temporary injunction] cannot have success.

I.

Article 2.2. first sentence, in conjunction with Article 1.1. second sentence, of the Basic Law, obliges the state to protect every human life. This duty to protect is comprehensive. It requires the state to stand by to support and to protect life; this means foremost, to guard it against illegal interferences by others. This command is guideline for all state organs according to their respective tasks. Because human life represents a highest value, this duty to protect [human life] must be taken especially serious.

II.

How the state organs fulfill their obligation to effectively protect life is, in principle, a decision within their own responsibility. [The state organs] decide which protective measures are useful and necessary to ensure an effective protection of life. Their freedom in the choice of the means to protect life can, in cases of particular circumstances, be narrowed down to one particular mean, when an effective protection of life cannot be achieved in another manner. Contrary to the quite understandable opinion of the petitioner, such a case is not is not at hand here.

The peculiarity of the protection against life-threatening blackmail by terrorists is characterized by [the fact that] the called-for measures must be adapted to the multitude of unique situations.

[The called-for measures] can neither be generally and bindingly standardized beforehand, nor can [called-for measures] be derived from a Basic Right of individuals in a binding and standardized fashion. The Basic Law creates a duty to protect not only the individual, but also all citizens as a whole. An effective fulfillment of this duty requires [the state organs] to adequately react to the specific circumstances of the individual case; this alone suffices to render impossible a binding commitments to particular measure. In addition, such an advance commitment [to react in a certain way] cannot be prescribed by the constitution, because then the state's reaction would be predictable for terrorists. Thereby it would become impossible for the state to effectively protect its citizens. This would be in irresolvable contradiction with the [state's] task as posed in Article 2.2. first sentence of the Basic Law.

For the same reasons the general equality clause (Article 3.1. of the Basic Law) cannot command [the state to make] identical and patterned decisions in all kidnapping cases.

Due to this constitutional analysis, the Federal Constitutional Court cannot order the competent state organs to decide in a particular manner. It is within the discretion of the respondents to decide which measures are to be taken to fulfill their duty to protect.

[signed by all eight judges]

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