Abstract of the order of 17 November 2022

Second Senate
Order of 17 November 2022
2 BvR 2009/22

Headnotes (non-official):

1. The Higher Regional Court did not sufficiently examine whether there was compliance with the minimum information requirements for a European Arrest Warrant. This violated the applicant’s right under Article 47.1 of the EU Charter of Fundamental Rights to effective legal protection.
2. The required weighing of consequences favours the applicant. If he were extradited and it were later determined that the extradition was unlawful, a successful assertion of an objection would no longer be possible. By contrast, a delay in extradition would be less burdensome.

Summary:

I.

The applicant is the subject of a European Arrest Warrant (“EAW”) for criminal prosecution in Belgium.

Under the heading “description of the circumstances in which the offence(s) was (were) committed”, the EAW states, in relevant part: On 21 December 2021, a suspicious vehicle with German registration plates was spotted in De Panne (Belgium). During the inspection of the vehicle, life jackets, a canister, a pump, an engine and an inflatable boat were found. The facts clearly point to the supply of an inflatable boat to smugglers. The two suspects who were present denied the crime and stated that they wanted to take the goods to a friend’s brother. The distance travelled and the goods carried clearly indicate that the two suspects can be linked to high-risk human smuggling offences. Further investigations revealed that suspect X1 was not only associated with suspect X2, but also with other persons. X1 had contacts with participant X3. The second suspect had contact with participant X4 [the applicant], in view of the further execution of the orders. 

The applicant asserted that his involvement was not apparent from the facts set out in the EAW. The Higher Regional Court Düsseldorf found that the EAW met the formal requirements and was permissible. In conjunction with a constitutional complaint, the applicant applied for a preliminary injunction to stay extradition pending a decision in the main proceedings.  

II.

Based on the considerations below, the Federal Constitutional Court found that the order of the Higher Regional Court violated the applicant’s right under Article 47.1 of the Charter of Fundamental Rights to effective legal protection. The Court rescinded the order insofar as it pertained to the permissibility of extradition and remanded the matter for further review. 

When deciding legal matters that are fully determined under EU law, the fundamental rights of the Basic Law are not applicable as the direct standard of review; in principle, it is EU fundamental rights that are relevant. 

The minimum official information required to enable the executing judicial authorities to give effect to an EAW swiftly by adopting their decision on the surrender as a matter of urgency is set out in Article 8 of the Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (hereinafter “Framework Decision”). Pursuant to Article 8.1 (d) and (e) of the Framework Decision, the EAW must contain the nature and legal classification of the offence and a description of the circumstances in which the offence was committed, including the time, place and degree of participation in the offence by the requested person. 

Germany has implemented the provisions of the Framework Decision in the Act on International Mutual Assistance in Criminal Matters (hereinafter the “Act”), which provides that the competent Higher Regional Court shall decide on the permissibility of the extradition. Pursuant to § 83a.1 no. 4 and no. 5 of the Act, extradition is only permissible if the EAW contains, among other things, information on the nature and legal assessment of the offence, including the statutory provisions, and a description of the circumstances of the commission of the offence, including the time and place of commission and the requested person’s involvement. 

This information is also required to review compliance with the principle of specificity, which is one of the general rules of international law within the meaning of Article 25 of the Basic Law and is set out in Article 27.2 of the Framework Decision and § 11 of the Act. According to the case-law of the Court of Justice of the European Union, this principle confers on a person to be surrendered the right to be prosecuted, sentenced or otherwise deprived of their liberty only for the offence on which the surrender is based.  

According to these standards, the challenged order does not withstand constitutional review. There was an insufficient examination of compliance with the mandatory minimum information requirements, particularly regarding the involvement of the applicant.

The Higher Regional Court failed to address the fact it cannot be clearly ascertained from the EAW which specific offence(s) the applicant is accused of by the Belgian authorities. While “smuggling of human beings”, “criminal organisation” and “trafficking in human beings” are indicated elsewhere in the EAW form, under the section “nature and legal classification of the offence(s)”, only Article 77 of the Belgian law of 15 December 1980 – which criminalises smuggling – and the Belgian Criminal Code provision on accomplices are listed as the statutory criminal provisions. Neither the provisions for participation in a criminal organisation nor those for trafficking in human beings are listed or otherwise referred to in this section. The Higher Regional Court thus also overlooked the fact that human smuggling – even if committed by a criminal organisation – is not included in the listed offences in Article 2.2 of the Framework Convention. 

Nor did the order address the fact that the description of the circumstances does not reveal any specific act of the applicant. While the word “offender” is indicated under “type of offence or participation”, the applicant, unlike the two persons described as “suspects”, is expressly described as a “participant”. At what point in time and in what way the “second suspect is said to have had contact” with the applicant, what “further execution” of the “orders” is said to have been discussed, or which concrete act the applicant is accused of committing in the context of this “contact” with the suspect cannot be inferred from the description of the circumstances.