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The following abstract was prepared by the Federal Constitutional Court and submitted for publication to the CODICES database maintained by the Venice Commission. Abstracts published by the Venice Commission summarise the facts of the case and key legal considerations of the decision. For further information, please consult the CODICES database.
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Abstract of the Federal Constitutional Court’s Order of 16 January 2010, 2 BvR 2299/09 [CODICES]
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AbstractSecond Chamber of the Second Senate
Order of 16 January 2010
2 BvR 2299/09
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Headnotes (non-official):
In extradition proceedings German courts are bound by the Constitution to examine whether extradition and the act underlying it are compatible with the minimum standards under public international law and with the indispensable principles of the German public order ("ordre public").
The indispensable constitutional principles include the core of the proportionality principle which is derived from the rule of law (Rechtsstaatsprinzip). Accordingly, organs of the Federal Republic of Germany may not extradite an alleged criminal if he or she faces an unbearable punishment which consequently appears unreasonable from any conceivable point of view. Similarly, a cruel, inhumane or degrading punishment is incompatible with the indispensable principles of the German constitutional order.
A life imprisonment regarding which there is no possibility that the sentence might be suspended and the prisoner granted probation does not as such amount to unbearably hard or inhumane punishment which would prevent extradition. However, one of the prerequisites for humane detention is that the convicted person in principle maintains a potential chance of regaining at some point his or her freedom. Thus, it is crucial in extradition matters that the convicted person actually has a practical chance of regaining his or her freedom under the requesting state’s legal system.
If, however, a punishment will always be enforced until the convicted person’s death without any actual, sufficient prospect that the convicted person will regain his or her freedom, then such punishment will be deemed to be cruel and degrading even when considering that respect must generally be paid to foreign legal systems in international dealings under public international law.
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Summary:
I.
The complainant is a Turkish national. He is accused in his role as a regional leader of the Kurdistan Workers’ Party (PKK) of planning and ordering a bomb attack against a provincial governor. The Turkish government seeks his extradition on the basis of an arrest warrant issued by a Turkish jury court. The complainant has been in detention for the purpose of extradition since 2 April 2009. In Turkey he faces what is known as an “aggravated” life imprisonment if he is convicted. Suspension of the enforcement of this sentence and a grant of parole are not possible. Pardoning a prisoner is also only possible in cases of permanent illness, disability or for reasons of age. The competent Higher Regional Court (Oberlandesgericht) declared the extradition permissible.
II.
The Second Chamber of the Second Senate of the Federal Constitutional Court granted the constitutional complaint directed against such decision and reversed the Higher Regional Court’s order. In light of the punishment he faces, any contribution by the German authorities to the complainant’s extradition is incompatible with Article 1.1 (guarantee of human dignity) and Article 2.1 (right to freely develop one’s personality) of the Basic Law. This does not yet constitute a final decision on the extradition. Instead the competent authorities are called upon to adopt a new decision.
According to the Federal Constitutional Court’s established case-law one of the indispensable principles of the German constitutional order is that a punishment that is impending or has been imposed may not be cruel, inhumane or degrading. The potentially destructive psychological effects of imprisonment are particularly significant and must be countered by humane detention. In this context, each hope of a possible early release eases the psychological strain resulting from imprisonment. However, especially in extradition matters the Federal Constitutional Court takes into account that the Basic Law is based on the premise that the Federal Republic of Germany is integrated in the international legal order of the community of states. This includes respecting the structures and content of foreign legal systems as well as its approaches even when certain aspects do not conform to German domestic law. Thus, with regard to the question of whether there is an impediment to extradition, it can be concluded that in international dealings protection of a core area determined by respect for human dignity and the rule of law cannot be identical to domestic legal views. Indispensable principles are not violated simply because the punishment to be enforced has to be regarded as extraordinarily harsh and, if measured strictly against the standards set out in German constitutional law, could no longer be regarded as reasonable.
When assessing in the present case whether the life prison sentence is “aggravated” it is decisive that the continued enforcement of the sentence until death can only be dispensed with if the prisoner is extremely infirm or suffers from a life-threatening illness. This violates the indispensable principles of the German constitutional order in those situations where – like here – regaining freedom remains uncertain even if such circumstances exist as the prisoner can only hope that he or she will be pardoned. The expected punishment and the restricted conditions for pardoning deprive a convicted person of any hope he or she may have of leading an independent life in freedom one day. With a view to human dignity, however, such hopes are what make a life sentence bearable in the first place. In the case at hand, the conditions for pardoning leave the convicted person at best hoping to die in freedom. The Higher Regional Court should therefore not have limited itself to examining whether the complainant had a theoretical chance of regaining his freedom. Instead an overall assessment of each individual case should determine how the relevant detention is implemented.
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