Summary:

I.

The constitutional complaint relates to the revocation of an order suspending the execution of an arrest warrant on the basis that new circumstances within the meaning of the third sentence of § 116.4 of the Code of Criminal Procedure have arisen.

Based on an arrest warrant of the investigating judge of the Federal Court of Justice, the complainant was subjected to pre-trial detention in November 2001 on suspicion that he had supported a terrorist organisation in connection with the 11 September 2001 attacks in the United States of America. In August 2002, the complainant was indicted before the Hamburg Higher Regional Court on suspicion of membership in a terrorist organisation committed concurrently with aiding and abetting murder in more than 3000 cases. In February 2003, the Higher Regional Court sentenced the complainant to fifteen years’ imprisonment. In March 2004, upon the complainant’s appeal, the Federal Court of Justice overturned the decision of the Higher Regional Court and remanded the matter to the Higher Regional Court. In April 2004, the Higher Regional Court amended the arrest warrant against the applicant to the effect that it was henceforth only based on a strong suspicion of membership in a terrorist organisation. At the same time, the complainant was reprieved from the further execution of his pre-trial detention and was released, subject to conditions. In August 2005, the Higher Regional Court convicted the complainant of membership in a terrorist organisation and sentenced him to seven years’ imprisonment. At the same time, the court set aside the order suspending the execution of an arrest warrant and ordered that pre-trial detention be executed (again). It argued that the sentencing of the applicant to seven years’ imprisonment amounts to a new circumstance that requires the execution of the arrest warrant. Both the complainant and the Federal Public Prosecutor General’s Office and the side plaintiffs filed an appeal on points of law against this decision. The complainant request for a suspension of the execution of the arrest warrant remained without success before both the Higher Regional Court and the Federal Court of Justice. The constitutional complaint challenging this decision was successful.

II.

In response to the constitutional complaint, the Third Chamber of the Second Senate of the Federal Constitutional Court held that the challenged decisions of the Higher Regional Court and the Federal Court of Justice violate the complainant’s right to personal freedom under the second sentence of Article 2.2 of the Basic Law in conjunction with the first sentence of Article 104.1 of the Basic Law; it overturned the orders and remanded the matter to the Higher Regional Court for a new decision.

The decision is based on the following key considerations:

Interferences with the substantive guarantee of freedom set out in the second sentence of Article 2.2 of the Basic Law are permissible only pursuant to a formal law and only in compliance with the procedures prescribed therein. Here, Article 104.1 of the Basic Law reiterates the requirement of a statutory provision, which is already set out in the second sentence of Article 2.2 of the Basic Law, and reinforces it for all restrictions of a person’s liberty by not only requesting a formal law but by also establishing the constitutional requirement to comply with the formal procedures prescribed therein.

Under § 116.4 of the Code of Criminal Procedure, the judicial suspension of the execution of an arrest warrant may be set aside only if the circumstances have changed in that they differ from the circumstance underlying the suspension. This requirement is one of the most important (procedural) guarantees regarding which Article 104.1.1 of the Basic Law calls for compliance and which are protected as fundamental rights. If the execution of an arrest warrant has once been suspended without this decision being challenged, any new detention-related decision that results in the discontinuation of the suspension of the pre-trial detention is permissible only subject to the restrictive requirements of § 116.4 of the Code of Criminal Procedure. Pursuant to no. 3 of that provision, a repeated judicial execution of the arrest warrant may be considered only if new circumstances make detention necessary.

Within the meaning of the third sentence of § 116.4 of the Code of Criminal Procedure, circumstances that arise subsequently or become known after the order of suspension of execution qualify as “new” only if they cast doubt on the reasons for the order in such a material point that suspension would not have been granted had the circumstances already been known at the time of the decision. In other words, the decisive criterion for a revocation of the suspension is that the basis of trust underlying the decision to suspend ceases to exist. In order to determine whether this is the case, it is necessary to assess all the circumstances of the individual case against the background of the normative significance of the fundamental right of personal liberty.

A judgment that is pronounced after the execution of arrest is suspended, or application request by the public prosecution for a harsh sentence, may be suitable to justify revoking the suspension to execute an arrest warrant. However, this presupposes that the sentence ultimately imposed by the trial judge or the sentence requested by the public prosecution deviates materially, and to the defendant’s detriment, from the respective magistrate’s prognosis and that, as a result, the danger of absconding increases quite substantially. To determine whether or not this is the case, all circumstances of the individual case must be weighed and assessed. Circumstances are of relevance only if they relate to the grounds for detention. Notably, new circumstances cannot relate to the (strong) suspicion of a criminal offence. This suspicion already constitutes the fundamental basis for issuing and upholding every arrest warrant.

However, even if the requirements of the third sentence of § 116.4 of the Code of Criminal Procedure are satisfied, the principle of proportionality always requires an assessment as to whether the proceedings can be safeguarded through measures that are more lenient than a revocation of the suspension.

The challenged decisions do not satisfy these requirements. The Higher Regional Court relied one-sidedly on the severity of the sentence without indicating that this deviation is to the complainant’s detriment and that the danger of absconding has thus increased quite substantially. In addition, it did not attach any significance to the fact that, by complying with all conditions, the complainant has created a basis of trust and that his expectations in that regard are generally worthy of protection. By relying on one of the grounds for arrest set out in § 112 of the Code of Criminal Procedure, namely the particular gravity of the suspected crime, and thus on reduced standards for the probability of absconding, the Higher Regional Court impermissibly shifted the basis of assessment to the detriment of the complainant. The Federal Court of Justice did not take sufficient account of the fact that the complainant has created a basis of trust by complying with all imposed conditions.

Against that background, the Higher Regional Court must adopt a new decision on the suspension of the execution of the arrest warrant, and, in doing so, must take due account of the standards set out above. If the requirements for a revocation of the suspension are not met - which seems to be the case here - the complainant must be released from pre-trial detention immediately.