## Facts

- After aircraft hijackings in the United States and incidents in Germany raised concerns about planes being used as weapons, the Federal Republic of Germany enacted the Aviation Security Act (Luftsicherheitsgesetz, LuftSiG) in 2005.
- The act aimed to protect civil aviation from hijackings, sabotage, and terrorist attacks, and to regulate state responses to threats involving civil aircraft.
- The statute authorized the German armed forces (Bundeswehr) to use direct force to regain control of a hijacked aircraft intended to be used against human lives, but only after other means (such as attempts to divert the aircraft) had failed.
- Section 14(3) LuftSiG permitted the direct use of armed force to destroy an aircraft if it was to be used against human lives and if this was the only way to avert an immediate danger.
- The provision applied even where persons on board—passengers or crew—were not involved in the hijacking and were themselves victims.
- Several individuals filed constitutional complaints challenging § 14(3) LuftSiG as violating the Basic Law’s guarantees of human dignity (Art. 1(1) GG) and the right to life (Art. 2(2) sentence 1 GG), and as exceeding constitutional limits on domestic deployment of the armed forces (Arts. 35 and 87a GG).
- The Federal Constitutional Court (First Senate) reviewed whether the federation had authority to authorize such domestic military action and whether the shoot-down authorization could be consistent with the Basic Law.

## Issues

1. Does the Basic Law permit the federation, including under Art. 35 GG (assistance in disasters/especially grave accidents) in conjunction with Art. 87a GG, to authorize domestic Bundeswehr operations using specifically military weapons to shoot down a civil aircraft?
2. Does § 14(3) LuftSiG violate Art. 2(2) sentence 1 GG in conjunction with Art. 1(1) GG to the extent it authorizes killing persons on board who are not participants in the hijacking?

## Decision

- The Court held § 14(3) LuftSiG unconstitutional and void.
- The Court ruled that Art. 35(2) sentence 2 and Art. 35(3) sentence 1 GG do not allow the federation to order Bundeswehr missions using specifically military weapons for disaster control or especially grave accidents, as contemplated by § 14(3), when read together with Art. 87a(2) GG’s limits on domestic military deployment.
- The Court further held that, insofar as § 14(3) affects persons on board who are not participants in the crime, it violates the right to life (Art. 2(2) sentence 1 GG) in conjunction with the guarantee of human dignity (Art. 1(1) GG).
- The Federal Republic of Germany was ordered to reimburse the complainants’ necessary expenses.

## Legal Principles

- Human dignity under Art. 1(1) GG bars the state from treating innocent persons as mere objects of state action; individuals may not be reduced to instruments for the protection of others.
- The right to life in Art. 2(2) sentence 1 GG, read together with Art. 1(1) GG, forbids a legal authorization that allows the intentional killing of non-participants on board a hijacked aircraft to save people on the ground.
- The state’s duty to protect life does not justify choosing to kill innocent persons as a means of protection; the Basic Law does not permit a state decision that disposes of some lives to save others.
- Presumed consent of innocent passengers cannot serve as a constitutional basis for their intentional killing in a shoot-down scenario; the victims are not acting autonomously to create the danger.
- Domestic deployment of the Bundeswehr is constitutionally limited; under Art. 87a(2) GG, armed forces may be used internally only where the Basic Law expressly permits it.
- Even if a hijacked aircraft intended for use as a weapon can qualify as an “especially grave accident” under Art. 35 GG, that provision does not authorize operations amounting to domestic combat use of military weapons, such as destroying a civilian aircraft.

## Conclusion

In Aviation Security Act Case, 1 BvR 357/05 (2006), the Federal Constitutional Court invalidated § 14(3) LuftSiG because the Basic Law does not permit a domestic Bundeswehr shoot-down mission authorized by ordinary statute and, in any event, the intentional killing of innocent passengers and crew would violate the right to life in conjunction with the unconditional protection of human dignity.
