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Empty formulas to justify detention pending deportation - the justification practice of the Federal Police under scrutiny by the German Federal Court of Justice
Thu, September 12, 1:00 to 2:15pm, Faculty of Law, University of Bucharest, Floor: Ground floor, Amphitheater 2 „Nicolae Titulescu”Abstract
The obligation for state authorities to provide reasons for decisions that interfere with citizens' rights is firmly anchored in German law. The (Federal) Administrative Procedure Act (VwVfG), which has been in force since 1977 (as well as the respective administrative procedure acts of the individual federal states), stipulates that executive decisions must generally be justified, except in certain cases. In addition, Section 39 (1) sentence 3 VwVfG defines in particular the justification requirements for discretionary decisions. The legal norm reflects the widespread conviction among German jurists that the fundamental rights of the rule of law and the guarantee of legal recourse, i.e. in particular the right to challenge decisions by state authorities, have no practical significance if the decisions are not backed up by an appropriate statement of reasons.
Despite this favourable legal situation for those affected, the implementation of an adequate justification practice appears to be a challenge for state authorities, especially in areas in which comparatively powerless people are the addressees of state decisions. In last year's Eurocrim, I pointed out that, for around 30 years, the German Federal Employment Agency has regularly used empty formulas to justify a type of discretionary administrative act that interferes with the constitutionally guaranteed freedom of action of unemployed people, and that the Federal Social Court has regularly approved these justifications, thus diverting from the judicial and academic-juristic consensus. In this year's paper, I examine the justifications given by the Federal Police for applications for detention pending deportation of persons without residence status. The paper will analyse the case law of the Federal Court of Justice, which has regularly criticised empty formula justifications in such applications since 2010.