The legal basis of the ruling referred back to a 2015 agreement between the two major churches in Germany and the government to tackle church asylum together | Photo: Sven Hoppe/picture-alliance
The legal basis of the ruling referred back to a 2015 agreement between the two major churches in Germany and the government to tackle church asylum together | Photo: Sven Hoppe/picture-alliance

In 2020, a monk in Germany decided to take in a rejected asylum seeker from the Palestinian Territories who was facing deportation. For years, the legality of such an interpretation of church asylum remained unclear. Now, for the first time ever in Germany, there is a final ruling on this kind of case, which could serve as a legal precedent for future trials.

The Bavarian High Court confirmed the acquittal of a monk, rejecting an earlier application for appeal of the public prosecutor's office. This verdict means that the court decision is now final and can no longer be appealed.

The case itself was as unique as the phenomenon of church asylum itself: In 2020, Benedictine monk Abraham Sauer had taken in a rejected asylum seeker from the Gaza Strip. The failed asylum seeker was facing deportation to Romania under the EU's Dublin III regulation, since Romania was the country through which he had entered the European Union.

The local district court of Kitzingen originally decreed that the monk in question had committed a criminal offence by interfering with the due legal process in the case; however, the court also said that the monk was excused from facing legal prosecution as he had to face a conflict of conscience. Therefore, there was no sanction imposed at the local level when the case went to trial, which the monk could not attend due to a positive COVID-test at the time.

Protecting migrants behind church walls does not necessarily indemnify people who belong to a religious order only because they face a conflict of conscience | Photo: M. Schutt/dpa/picture-alliance
Protecting migrants behind church walls does not necessarily indemnify people who belong to a religious order only because they face a conflict of conscience | Photo: M. Schutt/dpa/picture-alliance


The Bavarian High Court then confirmed that verdict of the first level of legal instance, but it only confirmed the result, and not the legal reasoning behind it. The court said that the decisive argument in the case was not the fact that the defendant had been facing a conflict of conscience, but stressed that he had not committed a crime in the first place:

The high court determined that the monk had not facilitated an unauthorized stay. Technically speaking, merely providing room and board to the rejected asylum seeker from the Palestinian Territories was not sufficient to qualify as a crime.

Read more: Germany: Blind Syrian seeks refuge in church

Case already being used as legal precedent

The court argued that in accordance with the law, anyone who grants church asylum is not obliged to actively end it if an asylum seeker repeatedly loses his appeals -- even in difficult cases where the Federal Office for Migration and Refugees (Bamf) had to examine whether the case might qualify for an exemption from the Dublin III regulation on account of hardship.

According to the presiding judge, Susanne Aulinger, an obligation to actively act to end an unauthorized stay only exists on the part of any refugee affected in such a way as well as on part of the authorities executing the court order to deport an individual. 

Furthermore, the judge chose to base her ruling on the law and its interpretation and not on the basis of this individual case. This means that it can serve as legal framework for fundamental questions on church asylum and on individual decisions of religious workers to protect individuals.

Read more: Mother Mechthild: 'I am not a criminal'

Abraham Sauer said he was surprised at the verdict, adding that it was also good to know that once again the public got to witness that churches and religious order do not get to enjoy any special rights, and that it was clearly expressed in the ruling that church asylum as such is not designed to undermine the rule of law. The religious order of monk Abraham Sauer also welcomed the verdict, saying that "(o)ur devotion to human dignity, which we have been applying to this abbey for years by accepting refugees -- even without church asylum -- is now also legally confirmed," Abbot Michael Reepen explained.

Both the prosecution and defense expressed that they were satisfied with the verdict. The defendant's lawyer said the ruling would make it easier in the future to protect clergy who grant church asylum. In response to the high court ruling, a similar case involving a Franciscan nun has now already been suspended.

Read more: Germany: Pastor convicted for providing church asylum

Certain limitations remain in place

However, the ruling does not grant church asylum to all who seek it. In her reasoning behind the ruling, Judge Aulinger went into great detail highlighting the obligations and terms under the 2015 agreement between the state and the church on church asylum. 

Under the provisions of that agreement, a dossier highlighting the details for anyone in church asylum must be submitted to Bamf for each person claiming this irregular kind of de facto protection. The agreement specifies that any asylum seeker in church asylum automatically gains the right to be tolerated ("Duldung") until the case is examined multiple times, and a final decision is issued. This is in accordance to prior case law.

The Judge said that this agreement also implies that authorities are involved; she stressed that local authorities just have to tolerate church asylum without taking action. They cooperate with the churches involved, and the churches cooperate with the authorities. Therefore, she argues, a church representative who adheres to the terms of the agreement cannot be accused of breaking the law in such an instance.


However, the judge also emphasized that there can be a risk of criminal liability for churches if they deliberately undermine this so-called dossier procedure when taking in asylum seekers.

Furthermore, she underscored that clergy and other religious workers are not allowed to try to encourage asylum seekers to remain in church asylum after they received their final rejection and therefore become due to be deported. This, however, does not mean that providing room and board counts as such an act of encouragement.

There have been moves in Germany in recent years to try to bring the principle of church asylum in line with the law, as only small numbers of refugees are affected by this form of protection. However, there are also opponents to the idea, who say that allowing church asylum without checks could protect unwanted individuals and criminals.

Read more: Pope urges countries to share responsibility and engage in dialogue

With KNA, epd

 

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