WerteInitiative: Dear Mr Gelbart, following the antisemitic assault by an FU student on a Jewish fellow student, the FU’s university management is providing for a three-month ban from the premises as the maximum measure. The reason is said to be the Berlin Higher Education Act, which supposedly does not permit expulsion. Do you see it that way too?
Nathan Gelbart: It may be correct that the Berlin Higher Education Act (Berliner HG) does not provide any explicit basis with concrete case examples of breached standards of conduct for the expulsion of students.
That does not mean, however, that expulsion is generally inadmissible; this claim is untrue. For students must, for example, compulsorily be expelled under Section 15 Berliner HG if they
- are not permitted to continue their studies in any degree programme,
- have not paid fees and contributions, including the social contributions to the Studierendenwerk, the contribution for the student body and, where a corresponding agreement exists, the contribution for a semester ticket, despite written reminder and threat of expulsion,
- have passed the final examination or have definitively failed the certificates of achievement prescribed in the chosen degree programme or a prescribed examination, unless within two months they demonstrate the necessity of enrolment for attaining a further study objective; the same applies in the case of a completed doctoral project.
WerteInitiative: Does that mean there is no legal means of expelling a student who beats another so badly that he has to be hospitalised?
Nathan Gelbart: Section 16 Berliner HG merely provides that in the case of “disturbances of the orderly operation of the university by students” measures may be taken for a maximum of three months. If the law offers no explicit possibility of expelling students on grounds of conduct, that by no means implies that students cannot nevertheless be expelled under general principles and for particularly important reasons, that is to say on extraordinary grounds for expulsion where it is unreasonable for a violent offender to remain at a university. For the serious, intentional and completely unprovoked bodily injury of a fellow student on evidently antisemitic motives goes lastingly beyond a disturbance of the orderly operation of the university. The act of violence at the expense of Lahav Shapira violates the basic consensus of peaceful academic coexistence between students of different ethnicities, religions and nationalities. In other words, precisely the essence of what our university culture and our free democratic basic order are based on. The FU rightly advertises itself with this.
The FU is an institution under public law, that is a state institution, which under Article 20 (3) of the Basic Law (GG) is bound by law and justice. A state university has to realise several principles and mandates, including constitutional ones. On the one hand the specifically university-related educational mandate under Section 4 Berliner HG, and furthermore under Article 14 of the EU Charter of Fundamental Rights. The FU therefore has to guarantee all students participation in university education, and in such a way that the life and limb of students are not endangered by the conduct of third parties, in particular by other students, and above all not because students engage and express themselves politically within the framework of students’ freedom of expression.
WerteInitiative: So the Berlin Higher Education Act is not sufficient at this point; the legal discussion would have to take fundamental rights into account as well, such as the right to physical integrity?
Nathan Gelbart: An explicit legal basis would make it easier for a state educational institution to order an expulsion on the grounds of the commission of serious criminal offences by students at the expense of fellow students. If, however, the life and limb of students are massively endangered by violent fellow students, the educational institution has to take the appropriate measures in order to protect freedom of expression, but above all the life and limb of the students concerned. The measures are subject to a proportionality test, that is, they must be necessary, suitable and appropriate. The state’s duty of protection must therefore make the expulsion of antisemitic violent offenders possible even where no explicit wording to this effect is provided in a state law. Required state action to protect the life and limb of students takes precedence over the Berliner HG.
This applies even if the Berliner HG does not explicitly provide for injury to the body of other students as grounds for sanctions; for the right, indeed the duty, to act follows from other legal norms binding on the FU.
As a state institution, the FU is obliged, both under Article 2 (2) GG and under Article 8 (1) of the Berlin State Constitution, to protect the life and physical integrity of students and employees as well as visitors.
WerteInitiative: In your view, is a legal tightening needed, or do the FU management and other universities have possibilities of action to draw consequences after such a terrible act?
Nathan Gelbart: It is not a question of being able to, but of being willing to exclude sufficiently suspected offenders, who intentionally and moreover on evidently antisemitic motives endanger the life and limb of fellow students, from university operations not only temporarily (provisional ban from the premises) but, because it is unreasonable for them to remain at the institution, permanently (expulsion). An expulsion would be likely to be proportionate in such cases and can, moreover, be reviewed by the person concerned before the administrative courts.
For Lahav Shapira, who will hopefully soon have fully recovered, it is quite simply unreasonable to have to keep running into the fellow student who injured him so seriously on campus.
If the view of the FU and of the Berlin Senate were correct, the suspect would be permitted, after the ban from the premises has expired, to beat students half to death again without having to fear expulsion Would the FU then issue another ban from the premises? On the general grounds for expulsion named above, the FU could and should have expelled the antisemitic violent offender even without literal mention in the Berliner HG. Within the scope of its discretion, however, it regrettably chose the milder means of a temporary ban from the premises, which incidentally is likewise not expressly provided for in the Berliner HG. The FU is now bound by this discretionary decision. Further-reaching steps are unfortunately likely to be no longer possible.
WerteInitiative: Many thanks for the conversation.
