In a celebrated verdict subsequent to a lengthy deliberation, the Highest Administrative Court of Hesse/Germany (Hessischer Verwaltungsgerichtshof) has annulled the order issued by the Mayor of Frankfurt, Mrs Petra Roth, which caused an immediate expulsion and lifetime ban on Muslim Sheikh and motivational speaker Dr.Bilal Philips, and affirmed his right to re-entry into the country. The decision is based on a former German Supreme Court verdict.
Court Verdict 1: Dr. Bilal Philips vs Stadt Frankfurt
During the course of events initiated on the 20th April 2011, the defendant (City of Frankfurt represented by the mayor Mrs Petra Roth) cited Section 55 sub-section 8 of the Residence Act – Discretionary Expulsion as justification for the issued order where it states:-
- A foreigner may be expelled if his or her stay is detrimental to public safety and law and order or other substantial interests of the Federal Republic of Germany.
- A foreigner may be expelled in accordance with sub-section 1 in particular if he or she,
a) publicly, at a meeting or by disseminating literature, endorses or promotes crime against peace, a war crime, a crime against humanity or terrorist acts of comparable importance in a manner conducive to disturbing public safety and order or
b) incites hatred against sections of the population or calls for violence or arbitrary measures against the same in a manner conducive to disturbing public safety and order or attacks the human dignity of others by insulting, maliciously disparaging or slandering sections of the population.
However after considering all circumstances at the time of this decision, the Chamber, which consisted of Head Judge Reutter-Schwammborn, Judge Metzler, Judge Wilke, Volunteer Judge Breitkreuz and Volunteer Judge Dressler, were not convinced that Dr. Philips’ actions in fact fulfilled any of the requirements given in section 55 through his statements during a public speech in Frankfurt, through his statements available on the Internet, or in any other way.
The Court went further to say that, “The statements made by the Claimant (Dr. Bilal Philips) are expression of Freedom of Speech. The validity of the defendant’s interpretation according to which the claimant has called for the death penalty for homosexuals is questionable. The wording and the public statements made on 20.04.2011 give no room for such an interpretation. Also, there is no evidence that there is insincerity in the claimant’s statements. In his video “Homosexuality – Contemporary Issues”, the claimant describes the death penalty for homosexuals as part of the Islamic religious and legal order under the condition that the sexual act be witnessed by four people.
However, he has not uttered a demand for the death penalty. Although the statements of the claimant could be understood as a promotion of the death penalty, they are more likely to be understood as the description of the punishment for homosexuals in the Sharia without a demand for application.”
According to the Administrative Court, “…the more favorable interpretation for the claimant is to be taken.”
The Court further stated that, “Although this opinion contradicts the values of the German constitution, it is still covered by the freedom of speech. Merely the opinion that God’s law is above the state’s law, does not justify any sanctions since it is not the duty of the state to judge the opinion of a party, but their conduct. The opinions might be according to the understanding of fundamentalist Salafi Islam especially considering that the claimant has been associated with the preacher Pierre Vogel. However, the statements cannot be understood in a way that they would be exceeding religious opinions and act in an aggressive and detrimental way, seeking to abolish the constitutional order of German law. Only in that case would they exceed the limits of freedom of speech.
Also, statements of the claimant cannot be understood as an attack upon human dignity.Although the claimant describes homosexual behaviour as religious sin, he does not deny the right of homosexuals to be human. The claimant also has not incited hatred through his statement. In this respect it is to be considered that the claimant said publicly, that his sister is homosexual and he doesn’t hate her for that.
The overall circumstances do not give any indication that the claimant, either by way of speech or by his choice of words, has promoted hatred against homosexuals. It is to be considered that in the video, “Homosexuality – Contemporary Issues”, even according to the defendants opinion, the claimant has made his speech in a calm manner.
The chamber also does not understand the statements as a call for violence against homosexuals or for taking the law in one’s own hands. There are no valid grounds for the defendant’s statement or claim that the claimant has promoted religiously motivated violence or terrorist activities by being a (jihad prone) Salafi.”
Disagreeing with the court’s ruling, the city of Frankfurt filed an appeal to reverse this decision.
Verdict 2: Dr. Bilal Philips vs Stadt Frankfurt – Response to Appeal
The Hessicher Administrative court, 3rd Senate presided over by Judge Barke, Judge Lehmann and Judge Dr Ferner refused the claim of the mayor to appeal against the verdict of the court.
Additionally the Mayor was made to bear all ensuing costs associated with the matter. The reasons given for the court’s rejection of his appeal were that; the appeal is not based on profound reasons and there are no doubts about the veracity of the challenged verdict. The right of appeal is to be granted only if a major ruling or a major factual detail in the administrative court verdict can be challenged with plausible arguments. It is therefore necessary that the actual statements in the court verdict are dealt with by the defendant; the appeal of the defendant does not correspond with these requirements.
The Administrative Court has described in detail that reasons for an extradition were not established. Due to the severity of the sanctions, an extradition requires strong fundamental grounds. The statements of the claimant might have been ambiguous, however, according to the German Supreme court the more favourable interpretation of the claimant is to be considered.
The statements are legitimized through the freedom of speech, and the statements of the claimant are a description of religious values.
Generally, an appeal can be made if the court has to deal with new legal questions which have not been discussed in previous cases. This has not been the case here.”
Therefore, the court’s ruling stands and Dr. Bilal Philips is now free to enter into Germany since the ban has been found unjustified and effectively annulled.