The rationale of the decision is rather simple. The Court started drawing a clear distinction between the hijackers, on the one hand, and the hijacked passengers and crew, on the other hand. Referring to the latter, the Court stated straightforwardly the reason for striking down section 14.3: human dignity forbids the public authorities to use human beings as objects of their action, and as a mere means for the salvation of others. When the authorities use the death of innocent and helpless people to save other individuals, the former are being transformed into objects. And this neglects the constitutional status of the individuals as subjects with inherent dignity and inalienable rights.

In doing so, the Court refused to go into any hypothetical balancing, based upon the utilitarian – and obvious – consideration according to which if the aircraft is not shot down, all its occupants will die when it will crash against its objective on the ground, adding to this the death of more human lives in the crash; but if it is shot down, the death of some hundreds of individuals (the occupants of the aircraft, both hijackers and hijacked) can save thousands of lives. The Court took out of the scales the option of the shooting down (because incompatible with human dignity) and therefore made impossible the balancing, both from a logical and from a legal point of view. Balancing is impossible when you have only one scale. And balancing is forbidden when one of the scales is unconstitutional16. As a result, it rejected the claims of some of the parties that had argued in favour of the validity of section 14.3 ASA stating that relativizing the value of the right of both the crew and the passengers to life may allow a rational balancing between the lives of those who are in the aircraft and the lives of them all.

In paragraph 119 the Court quoted its precedents on the right to life and on human dignity, underlining that human life is the vital basis of human dignity, which is a fundamental principle and a supreme value of the Basic Law; all human beings – even the terrorists - are entitled to human dignity, regardless of capacities, social status, mental or physic situation, and regardless also of the foreseeable duration of life.

The German jurisprudence about human dignity is usually very rigid, and for some also very activist, so it was not surprising that the Court stressed the importance of section 1.1 of the Basic Law.

In paragraph 120 the Court stated that sections 1.1 and 2.2 of the Basic Law imply not just a prohibition for the public authorities to violate the right to life, but also a duty to defend it against other people’s attacks17. The exact content and scope of this duty can not be established ex ante and abstractly, but according to the Court the German Basic

16This rationale implies that when the two scales can be legally weighed, the balancing is possible. We will see later (in paragraph 6) that this is the case when the airplane is occupied only by the hijackers, and there are no innocent passengers.

17However, this argument (the duty to protect the right to life) could be used to criticize the Court: as we will point out briefly infra in paragraph 5, this same idea could have had the effect of upholding section 14.3, because it could had been argued that the state’s duty to protect the right of the passengers to life (making the shooting down unconstitutional) is at least as significant as the state’s duty to protect the right to life of the possible victims on the ground (and therefore making unconstitutional the decision not to shoot down the airplane, or at least allowing the authorities to choose between both decisions).

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