Airline companies are directly responsible for the ill treatment of deportees by BGS officers or their own security personnel
This is the outcome of the 1963 Tokyo Agreement which regulates responsibilities on board of aircraft and which is implemented in Germany by the Air Traffic Regulations. No one has since questioned that as soon as the planes' doors shut, the captains of the aircraft are responsible for forceful measures taken on board. They alone are the bearers of power on board and thereby obliged to guarantee security on the aircraft. The accompanying Federal Border Guards on the other hand are on the same pas with the passengers, they are not authorised to take official action anymore. Despite this, the airline companies and the pilot association 'Cockpit' are trying to delegate the responsibility to the State. "The airline companies, or rather the captain, are relieved of their legal responsibilities because the deportation is taking place on order of the State, in which case the State is in the last instance responsible for the well being of the passenger, or deportee", says Georg Fongern, 'Cockpit' spokesperson. The police trade union (GdP) is of a very different opinion: "The officers are merely the henchmen of the captain: he has the sole responsibility for passengers and aircraft", says Jörg Radeck, spokesman for the GdP. However, the question of responsibility is not only of academic nature.
The consequences are manifold. In case of the injury or even killing of a passenger at the hands of BGS or police officers, the legal responsibility under civil law depends after all in whose jurisdiction the officers were active. If they support the pilot in the execution of his powers on board the aircraft, they are his assistants. According to labour law principles, in the last instance the legal responsibility in this case lies with the employer of the captain, that is the airline company. If the accompanying officers are not authorised by the flight captain, they are legally responsible in person, with all their property. This is because the legal norms which guide the responsibility of the State for damage caused during sovereign actions do not apply anymore, as there is no national jurisdiction.
It is no wonder then that the police trade union insists on the responsibility of the airline. In criminal law also, the acting officers as well as the captain can be held responsible for the possible injury or death of a passenger. Because the captain holds the position of a so-called "guarantor" and is legally responsible to ensure the safety of his passengers, he can be held accountable for the consequences of neglect of duty. This is even more reason for flight captains to reject the transportation of passengers who are forced to travel under duress. Passengers who witness incidents which pose a direct danger for life or physical safety of their fellow passengers are also responsible. To look away is the denial of assistance and punishable under paragraph 323(c) of the Criminal Act. Whoever intervenes is acting lawfully and will not have to fear being prosecuted on grounds of resisting enforcement officers. This is also the opinion of the police: "In the case of forceful measures being taken, passengers should actually act against the police officers because they proceed in an unlegislated area."