I.
The complainant has German and Greek nationality. As he was suspected of paying bribes in commercial practice and of money laundering, the Greek authorities requested his arrest on the basis of a European arrest warrant to ensure his extradition to Greece.

Following the complainant’s provisional arrest on 25 June 2009, the Munich Higher Regional Court (Oberlandesgericht) declared his extradition permissible on 10 August 2009. On 12 August 2009, the Chief Public Prosecutor’s Office (Generalstaatsanwaltschaft) decided to grant his extradition.
§ 9 no.2 of the Act on International Mutual Assistance in Criminal Matters (Gesetz über die internationale Rechtshilfe in Strafsachen – IRG) provides: “If also German jurisdiction is established for the offence, extradition is not permissible if [...] prosecution or execution is past the statute of limitation under German law or is ruled out on account of a German law granting exemption from punishment.”

In the view of the Higher Regional Court, the statute is not contrary to the complainant’s extradition. The court argued as follows: It is true that according to German law, the offences with which the complainant had been charged would have been past the statute of limitation in September 2008. However, the period of limitation was interrupted according to § 9 no. 2 IRG. Extradition for criminal prosecution is also permissible if the offence can no longer be punished within the domestic territory but the prosecuting authorities of the requesting state have performed acts that are suitable to interrupt the period of limitation under German law. The court held that the Greek authorities had performed such acts.

In his constitutional complaint, the complainant challenges the decisions of the Munich Higher Regional Court and of the Munich Chief Public Prosecutor.

II.
The Second Chamber of the Second Senate of the Federal Constitutional Court admitted the constitutional complaint for decision to the extent that it claims a violation of the complainant’s fundamental right to protection from extradition resulting from Article 16(2) first sentence of the Basic Law.

The decisions of the Higher Regional Court and of the Chief Public Prosecutor were reversed as they constituted a violation of the Basic Law. This is not a final ruling on the extradition itself. Instead, the competent authorities are called upon to make a new decision. The Chamber does not, in principle, object to the extradition of a German national to Greece on the basis of a European arrest warrant. It found, however, that the decisions granting extradition show shortcomings as regards their definiteness and the balancing of interest.

Constitutional case-law acknowledges that a balance must be achieved in every individual case between European interests in cross-border prosecution and the claim to protection of the holders of fundamental rights affected that follows from Article 16(2) first sentence of the Basic Law. Above all, this guarantee of fundamental rights encompasses strict requirements regarding legal certainty in the domestic law governing extradition proceedings. With regard to the question of legal certainty in extradition proceedings, it is decisive, and must therefore be taken into account in the present case, that pursuant to § 9 no. 2 IRG, extradition for offences in which also German jurisdiction is established can only be performed if prosecution is not yet past the statute of limitation under German law. It is true that running limitation periods can be interrupted by investigation measures, but German prosecution authorities had not performed such measures. Only the Greek authorities had investigated in this case.

It is decisive for the violation of the fundamental right to protection from extradition that the Higher Regional Court and the Chief Public Prosecutor should not have restricted themselves to examining whether also prosecution measures taken by Greek authorities would “by their nature” be suitable to interrupt the limitation period under the relevant provisions of German law. Instead, the German authorities, relying on the requirements regarding definiteness in extradition proceedings, should have taken into account the uncertainties and imponderabilities which such comparative considerations across legal systems necessarily involve. Apart from language difficulties, the fact that the provisions governing the law of criminal procedure are different in each European Union Member State causes uncertainties that may affect fundamental rights. This also applies to European arrest warrant proceedings. They simplify extradition between the European Union Member States within an economic and judicial area that grows ever closer together. However, they also allow each European Union Member State to deny extradition of its nationals if prosecution is past the statute of limitation within the domestic territory. In particular the open questions whether and to what extent foreign procedural acts have an effect on a running limitation period within the German legal system have not been sufficiently addressed by the challenged decision of the Higher Regional Court. In particular, the Higher Regional Court interpreted the statutory provisions in a way that violated the principle of the definiteness of the legal basis.