You are here:
Another successful constitutional complaint against decisions granting extradition
Press Release No. 116/2009 of 12 October 2009
Order of 9 October 2009
2 BvR 2115/09
The complainant, a German and Greek national, has for three and a half months been resisting his extradition for criminal prosecution, which is requested by the Greek authorities on the basis of by now three European Arrest Warrants. After the Federal Constitutional Court had decided last month already (see German press release no. 101/2009 of 4 September 2009) that permitting the extradition on the basis of the first European Arrest Warrant had violated fundamental rights of the complainant, the Munich Higher Regional Court (Oberlandesgericht) again declared the extradition permissible on account of the second European Arrest Warrant and ordered the complainant to be placed under arrest pending extradition. The Chief Public Prosecutor again decided to permit the extradition. The complainant's second constitutional complaint was directed against both decisions. The Second Chamber of the Second Senate of the Federal Constitutional Court granted the relief sought by the constitutional complaint to the extent that the complainant impugns the decision of the Chief Public Prosecutor permitting the extradition and the order of the Munich Higher Regional court to declare the complainant's extradition for criminal prosecution permissible. The decisions were rescinded and were referred back to a different Higher Regional Court for a new decision on the extradition. The Chamber still does not object on principle to the extradition of a German national to Greece on the basis of a European Arrest Warrant; it finds, however, that the Higher Regional Court's extradition order arbitrarily violates the complainant's fundamental right to protection from extradition. The order falls short of the minimum requirements placed on the nature and the depth of the reasoning of judicial decisions because it passes over essential legal questions- again with regard to issues of limitation - and because it goes not far enough when ascertaining the facts of the case.
According to the Federal Constitutional Court's case-law, the constitutional standard of the ban on arbitrariness requires a non-constitutional court's decision to give reasons inter alia if the reasons cannot already be unambiguously inferred from the law by the parties to the proceedings. Furthermore, in the law governing extradition proceedings, stricter requirements concerning judicial care follow directly from Article 16.2 sentence 1 of the Basic Law (Grundgesetz - GG), which demands a high degree of legal certainty. Accordingly, a charge may at any rate not be worded so vaguely that this makes the examination of bars to extradition impossible. In European Arrest Warrant proceedings as well, which serve to simplify extradition between the European Union Member States within an economic and judicial area that grows ever closer together, the non-constitutional courts must therefore examine as carefully as possible whether the specific charges describe punishable behaviour. They may not content themselves with merely performing a rough legal review.
In the instant case, the violation of the fundamental right to protection from extradition resulted, on the one hand, from the fact that the Munich Higher Regional Court did not deal with the essential question of whether the charges at issue, which date back to the years 2002 and 2003, might be statute-barred under German criminal law. Its cursory considerations regarding the lack of a statute of limitations for the prosecution of crimes to the detriment of the complainant do not live up to the constitutional requirements placed on the decision of a non-constitutional court. They are not viable and do not show that the legal situation has been examined. On the other hand, the Munich Higher Regional Court should also not have contented itself with merely stating that the extradition documents had been drafted in a sufficiently precise manner. In particular, it is not comprehensible that the charge, which merely describes, in a general fashion, the existence of business relations, and which is complemented by the allegation that in this context, fraud-related behaviour by the complainant, which is not explained any further, had taken place, was taken as the basis for the decision granting extradition.