Berlin, January 11, 2020
Urgent appeal from the RAV
Dear Ministers of Justice of the Federal States,
dear Presidents of the Higher Regional Courts, Regional Courts, Local Courts, Higher Administrative Courts and Administrative Courts,
dear President of the Federal Office for Migration and Refugees,
Given the current pandemic situation and the measures already taken, the RAV (Regional Employment Center) is convinced that
authorities and the judiciary also have a duty to take measures to prevent the further spread of the virus.
Calls for social cohesion lose their credibility if restrictions focus solely on the private sphere and the necessary efforts are not also undertaken by authorities and the judiciary. Against this backdrop, the RAV considers the following measures, among others, to be indispensable:
- All non-urgent court hearings must be cancelled immediately.
- The personnel requirements calculation system (PEBB§Y) of the judiciary is to be temporarily suspended and the situation in the courtrooms adapted to the pandemic.
- The delivery of negative (asylum) decisions is to be suspended until the end of the hard lockdown.
1. To suspend all non-urgent court hearings
Many court hearings that could be postponed are still taking place. Of course, in cases involving detention and protection from violence, in proceedings concerning the welfare of children, and in urgent custody matters, court hearings must also be held during the lockdown, provided that this does not pose any concrete and significant health risks.
However, what is at issue here are numerous criminal trials that do not involve detention, as well as trials in asylum cases and other proceedings that have been pending in the administrative courts for years and can be postponed without any problems.
Every court hearing increases the health risk for those involved in the proceedings. Numerous parties attend each hearing, often from different regions, all of whom maintain a multitude of other professional and social contacts. However, such gatherings should be avoided as far as possible in the interest of pandemic protection. Postponable hearings should therefore be canceled and rescheduled for after the lockdown. Naturally, it is up to each judge to make this decision, taking into account their judicial independence. However, the judicial administration should also consider the necessary constitutional balancing of interests in each case.
It should also be considered that the principle of "staying home" is diametrically opposed to a court hearing that is actually accessible to the public. Most of the population is probably not even aware that attending a court hearing to ensure public access constitutes a "valid reason" for leaving home.
2. On the suspension of the personnel calculation system and the situation in the courtrooms
The RAV (Regional Employment Center) acknowledges that canceling court dates during the lockdown leads to restrictions in the administration of justice. However, these restrictions also affect a multitude of other relevant areas of society, such as education, culture, religion, and specific economic sectors, like the restaurant industry.
Any existing pressure on the courts to complete cases can also be relieved by suspending the personnel calculation system PEBB§Y.
Especially given the emergence of a new, even more contagious mutation of the virus, everyone is now urged to do their part to contain the virus and thus make a return to normality possible.
The measures implemented so far in most courts are insufficient for protecting public health. Even maintaining social distancing is often not guaranteed. Given that face masks are usually not worn during hearings, effective hygiene measures are unlikely to be in place, even in larger rooms. Plexiglass partitions and enclosures offer only limited relief. If they are present at all – which is still not the case in many courts – they are open on several sides, and conversations frequently take place between the parties involved in the proceedings – for example, during inspections – where they stand in close proximity.
To make matters worse, the risk associated with travel is shifted to the parties involved in the proceedings. This is because, due to legal and/or professional obligations, attendance at the hearing is mandatory.
3. Regarding the delivery of negative decisions
Furthermore, rejection notices, including those for asylum applications, are still being served. During the lockdown in spring 2020, the Federal Office for Migration and Refugees suspended the service of negative decisions. This practice should be reinstated.
Currently, those affected have virtually no access to legal advice or support from independent counseling centers. Furthermore, numerous refugee accommodations are sealed off by quarantine orders, preventing residents from leaving.
Even if there are opportunities to leave their accommodations, pandemic-related access restrictions to law firms make it virtually impossible to obtain legal representation. Even if those affected wish to file a lawsuit themselves, they—who are often housed in rural areas—are burdened with the risk of traveling to legal aid offices using public transport.
We therefore demand that the delivery of negative decisions, particularly in the area of asylum and migration law, be suspended until the end of the lockdown.
The RAV therefore fully endorses the demand of the German Bar Association, which it set out in its well-founded proposal for a ‘Regulation on the temporary exemption from the requirement to complete a visa procedure’.(1)
We expect the authorities and the judiciary to respond appropriately and in accordance with the law to the pandemic. With this appeal, we therefore reiterate the demands we made to those responsible in March 2020.(2)
Respectfully, yours
Dr. Lukas Theune
, Attorney at Law, Managing Director, on behalf of the Board of Directors
(1) https://anwaltverein.de/de/newsroom/dav-initiativ-sn-91-20-covid-19-vo-visumverfahren?page_n27=2
(2) https://www.rav.de/publikationen/mitteilungen/mitteilung/corona-pandemie-auch-die-justiz-muss-umgehend-reagieren/49760e148aeeb89bb5a4bd5c52dc3533/
