"Legally Controversial" Approach of Dobrindt Might Cause Unease for Border Guards
Potentially dangerous strategies employed by Dobrindt could put border agents at risk.
Catchy Title: "The Tricky Path: Border Agents in a Legal Limbo?"
In the realm of German politics, Alexander Dobrindt's persistence with an approach concerning asylum seekers is stirring controversy and uncertainty among border agents, potentially conjuring a delicate predicament for law enforcement officials.
For roughly 17,000 federal law enforcement agents stationed at Germany's borders, Dobrindt's practices might become a precarious tightwire act. As the Federal Minister of the Interior, the CSU politician is their superior. This usually means: Law enforcement officers execute the orders of Dobrindt. However, what if those orders violate or potentially defy the law? Blind obedience is no longer an option after dark moments in German administrative history. Instead, the responsibility of the officers themselves expands.
Around 14,000 police officers are positioned at German border checkpoints, with another 3,000 set to follow. Their mission is to identify and deny entry to individuals lacking entry permits at the border. With few exceptions, this now includes asylum seekers looking to apply for asylum in Germany. A de facto ban on entry for all individuals without proper documents - Dobrindt issued the order for this just one day after taking office.
Politics: RTL/ntv-Trendbarometer Majority Endorses Dobrindt's Rejections
The officers are now to adhere to section 18 of the Asylum Act, which states that foreigners may be denied entry to Germany if they originate from a safe third country such as Poland, Austria, or France. However, there's a caveat: European Union law outranks German asylum law. This isn't up for debate, even within the federal government. In other words, Dobrindt’s lauded section 18 is rendered invalid by the Dublin Regulations. This means: Germany is obligated to accept asylum applicants - at least until a proper procedure has determined who is responsible for them.
The Berlin Administrative Court arrived at this conclusion not too long ago. The judges rejected the government's arguments. The government insisted on Article 72 of the Treaty on the Functioning of the EU, a kind of exception rule. According to this rule, the Dublin Regulations could be bypassed if Germany were in a state of emergency. However, the requirements for such an emergency - as is well known - are extremely stringent. The public order must be seriously threatened, for example, in the wake of an impending civil war or internal unrest. The European Court of Justice has already clarified this numerous times. As a result, the government's cited asylum application figure of 229,751 in the past year doesn't meet the criteria for an emergency, the Berlin judges stated. And this was before Dobrindt's decision.
Politics: Police Union Opposes Merz Doesn't Back Citizen Militias in Germany "Upon this backdrop, the Berlin ruling was anything but unexpected," says Patrick Heinemann in an interview with ntv.de. Far more puzzling, however, was the government’s response to the court decisions. Dobrindt swiftly announced that they'd adhere to the rejections. The instruction to federal law enforcement remains in place, with Section 18 of the Asylum Act still cited as the legal basis. He believes this keeps him within European law, said the Interior Minister. However, Berlin judges have just ascertained the opposite. In return, Dobrindt argues that this is due to the specific circumstances of the individual cases. Even Federal Chancellor Friedrich Merz assumes that they still have some "wiggle room" after the court decisions, although what he means by this remains unclear.
Dobrindt's Obstinacy is Tenacious
"I have never witnessed a federal government so flagrantly disregard a court's decision, let alone an administrative court," says Heinemann. And for good reason. A government subverting the rule of law is inconceivable without separation of powers. This means: The executive must respect the law in all that it does - and the judiciary has the authority to check this. The latter doesn't just involve top national or international courts—it's the very role of all German administrative courts to scrutinize the actions of administration and government for legality.
Formally, the Berlin decisions are individual rulings. However, Heinemann asserts that their significance extends beyond the particular cases. "This is unmistakably the case here." The court determined that there is no emergency situation in Germany to deviate from the Dublin Regulation. The reasoning behind the decision is fundamental. It doesn't only apply to the three Somalis but also to other asylum seekers at the German border.
Politics: Overturned Rejections - Judges Face Death Threats after Asylum Decision - Hubig Angry Moreover, the case was referred to a panel of three judges due to its fundamental importance, as reported by the "Süddeutsche Zeitung." After all, the government's primary argument in the proceedings didn't specifically apply to the Somalis. Dobrindt's latest declaration thus raises several questions. They aim to provide "sufficient justification" regarding the alleged emergency situation if the European Court of Justice decides on the rejections. However, the presented figures regarding asylum applications already pertained to the entirety of Germany. And if there are indeed further indications of an emergency situation—why didn't the government bring these forward in the Berlin proceedings to avoid a defeat?
"In my opinion, the government's reaction is nothing more than a smokescreen," says Heinemann. "The reality is that the current practice at the border is illegal. This has been legally confirmed, yet it continues." Since Dobrindt is not present at the border, this implies that thousands of federal law enforcement agents execute daily an order with questionable legal basis. The risk of this tightrope is increasingly being noted with concern, even among the authorities.
Federal Police Ombudsman Uli Grotsch told the "Rheinische Post": “I see immediately that the executive is conveying something contradictory of what the judiciary is saying. I consider this a truly problematic situation that needs to be clarified immediately." Andreas Roßkopf, chairman of the Federal Police within the Police Trade Union, also pointed out in an interview with RTL that some officers even feared potential criminal consequences.
Politics: After the Berlin ruling: "The pressure on Dobrindt could rise much faster than expected" As "off the mark" as Dobrindt assesses this fear, it is not groundless. While the legal hurdles for law enforcement agents are high, as Heinemann explains, they personally bear full responsibility for the legality of their actions under the Federal Civil Service Act. "The legislator adopted this stance in departure from the civil service law of the Weimar Republic and National Socialism." The notion that personal liability is absolved because the officers "follow a clear instruction," as Dobrindt claims, is incorrect.
Likewise, the officers cannot be exempted from personal liability in advance. Roßkopf had recently demanded a written clarification from the Ministry of the Interior to absolve legal action against the officers. "However, this wouldn't have the desired effect," says Heinemann. "There is no get-out-of-jail-free card."
However, there is another way to avoid finding oneself between duty-bound obedience and personal responsibility: protest. If the officers express their concerns twice, first to their superior and then to the next superior, they are generally relieved of their personal responsibility, as Heinemann explains. While this is seldom done in practice, "in the case of the rejections, they would do well to protest—especially now, as the illegality becomes increasingly evident."
Brief News: "Absolutely Unacceptable" - Juso chairman Türmmer calls for federal chancellor to intervene due to rejections at the border Besides disciplinary consequences, criminal liability for coercion in office comes into consideration. The officials must manipulate the behavior of asylum seekers through threats of violence or significant harm. "This would likely be the case if they deter asylum seekers in uniform and armed from crossing the border," says Heinemann. However, many law enforcement agents would put themselves at risk for coercion in this context. Ultimately, it depends on whether their action was also illegal—and how evident this was to the agents. "This applies to Dobrindt himself as well."
"The crude formula is: The clearer the illegality, the higher the risk of criminal liability," says Heinemann. With the decision of a single administrative court, this risk may still be manageable at present. "However, this changes if other administrative courts decide similarly. And I expect that to happen." Especially since Federal Minister of Justice Stefanie Hubig recently stated unequivocally on the ministry's website: "Therefore, it's clear: The interim decisions of the Berlin Administrative Court must be adhered to."
Breaking News: Similar Cases "daily" Police Union Laments Confoundment among Border Officials after Ruling on Rejections
The longer Dobrindt adheres to his rejections at the border, the greater the predicament for Dobrindt's executive agents. "At a certain point, even protests may no longer help to shift one's own responsibility," adds Heinemann. "This applies to Dobrindt himself as well." Unlike President Trump in the United States, government members in Germany can also be held criminally liable for illegal actions. Ignoring potential future court rulings should therefore not be an option for the minister—for the sake of the rule of law and personal interest.
Sources: ntv.de, Süddeutsche Zeitung, RTL, Rheinische Post.
- Migration
- Alexander Dobrindt
- Asylum Law
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