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Münsterschwarzach Benedictine Abbey: Protection granted despite rejection as a hardship case
Photo: Karl-Josef Hildenbrand / dpa
A monk from the Benedictine abbey of Münsterschwarzach, who granted a refugee church asylum, was acquitted by the Kitzingen district court. The 49-year-old defendant, as the abbey's refugee aid coordinator, provided assistance to a young asylum seeker from the Gaza Strip, whose asylum procedure would have been the responsibility of Romania under the Dublin Convention. The public prosecutor's office had demanded a fine of 2,400 euros for “aiding and abetting illegal residence without the required residence permit”. However, the court did not obey on Monday and acquitted the defendants (file number: 1 Cs 882 Js 16548/20).
According to the responsible magistrate Patricia Finkenberger, the monk had "unlawfully" assisted the asylum seeker to stay illegally, as accused by the public prosecutor's office. His "credible appeal to the fundamental right of freedom of belief and conscience" is "a reason for excuse derived from Article 4, Paragraph 1 of the Basic Law", "which excludes punishment in the individual case to be decided here." When asked, Judge Finkenberger told SPIEGEL that with a view to the church asylum, the verdict was breaking new legal ground.
The 49-year-old, who coordinated the refugee work at the Benedictine abbey east of Würzburg, took in the man who was born in the Gaza Strip in August 2020.
The 25-year-old had entered the European Union via Romania a few months earlier.
Since he was first registered in Romania, he should have returned there under the Dublin procedure.
The monk finally took him into the abbey - and kept him there even after the hardship commission, which has to be called upon in such cases, rejected the application.
Until the transfer period to Romania had expired and the asylum seeker was able to stay in Germany.
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Accused monk, defender of prayer houses (right): Freedom of conscience is higher than the right to prosecution
Photo: Nicolas Armer / dpa
The so-called church asylum is not an asylum in the legal sense; it is basically just a factual protection that is accepted by the authorities up to a certain point. Often the point is to keep refugees in church care until the transfer deadlines have expired and they can no longer be sent back to the country through which they entered the EU. According to the procedures that the Federal Office for Migration and Refugees agreed with the Protestant and Catholic Church in February 2015, these cases must be reported to the authorities immediately. This is followed by a hardship test by a commission that also includes church representatives. Most of the time this decision has a negative outcome - in Germany church asylum has therefore lost its practical importance since then.
In the present case, the accused monk did not adhere to the negative decision of the hardship commission.
According to the Catholic news agency (KNA), his defender Franz Bethäuser said in his plea that the monk relies on the freedom of belief, conscience and religion enshrined in the Basic Law.
This should be valued higher than the state's collective right to prosecution.
Judgment with a signal effect
District judge Finkenberger followed suit, also based on a key decision of the Federal Constitutional Court from 1971 on decisions of conscience in criminal law. In 2018, the Munich Higher Regional Court ruled that church asylum offered no “justification” for a violation of the law; the question of whether a charge of guilt - necessary for a conviction - can be raised against church councils and other parish officials when granting church asylum, the higher regional court had expressly left open. This jurisprudence, according to Finkenberger, has now "continued".
According to KNA, judge Finkenberger referred in her oral judgment to the monk's statement that he would also accept imprisonment to save the human dignity of a refugee. The freedom of belief and conscience is not only a right of defense, it must also enable active action, otherwise the mothers and fathers of the Basic Law would have excluded it. "Everyone knows that there was a lack of active action in the years before the constitution was created." According to KNA, the judge also pointed out that the monk had not affected any fundamental rights of third parties.
According to information from the Bavarian Ministry of Justice, a total of 27 preliminary investigations into the granting of church asylum against church members were initiated in the Free State last year.
How many of them are still pending is not recorded statistically.
Again and again, critics objected that only the Bavarian judiciary takes action against clergy and religious with this severity
According to the KNA, refugees have been accommodated on the monastery grounds since 2014; there are currently 36. Church asylum is the exception.
Three years ago the abbey received the integration award of the Kitzingen district for its refugee work.
Defense attorney prayer houses spoke of a "signal effect" of the judgment.
Again and again, critics objected that only the Bavarian judiciary takes action against clergy and religious with this severity.
For the first time, so prayer houses, such a case has now been heard in a local court.
However, the decision is not yet final.
The public prosecutor's office in Würzburg had demanded a fine of 60 daily rates of 40 euros each.
The law was deliberately circumvented by preventing an exit from the country following a negative hardship notice.
A spokesman said in response to a request from SPIEGEL that they were keeping themselves open to appeal against the judgment.
According to the court, the young man from the Gaza Strip is currently no longer in the Münsterschwarzach Abbey, but lives in a refugee accommodation and is going through a regular asylum procedure.
With material from dpa and AFP