Reasons for the preliminary injunction regarding the extradition of a German national to Hungary

Press Release No. 67/2024 of 02 August 2024

Order of 28 June 2024 - 2 BvQ 49/24

Today the First Chamber of the Second Senate published the reasons for its order of 28 June 2024 by which it had granted a preliminary injunction provisionally prohibiting the surrender of a German national, the applicant, to the Hungarian authorities and instructing the Berlin chief public prosecution office (Generalstaatsanwaltschaft) to take suitable measures to prevent the surrender and to bring about the applicant’s return to the Federal Republic of Germany (cf. Press Release No. 55/2024 of 28 June 2024, in German).

The Hungarian authorities have charged the applicant, who identifies as non-binary, with attacking far-right sympathisers in Budapest in February 2023. He was arrested in Berlin in December 2023. On 27 June 2024, the Higher Regional Court (Kammergericht) declared his extradition to Hungary to be permissible. The applicant’s authorised representative, by his own account, received the court order at 5:26 p.m. on the same day. The applicant’s transfer to the Hungarian authorities was initiated in the night of 27 to 28 June 2024. On 28 June 2024 at 6:50 a.m., the applicant was handed over to the Austrian authorities for transit. The Federal Constitutional Court received his application for a preliminary injunction on 28 June 2024 at 7:38 a.m.

This application is successful. Further constitutional review is required as to whether the Higher Regional Court has sufficiently taken into account the significance and scope of Art. 4 of the Charter of Fundamental Rights of the European Union and the related duties to investigate detention conditions in Hungary. Moreover, the way the surrender was carried out raises considerable concerns in terms of compatibility with the requirements of effective legal protection.

Facts of the case:

The Hungarian authorities have charged the applicant with being a member of a criminal organisation and, together with other persons, attacking far-right sympathisers, or persons considered as such, in Budapest in February 2023. The applicant was arrested in Berlin in December 2023, due to, inter alia, a European Arrest Warrant issued at the request of the Hungarian authorities.

The applicant asserted the existence of obstacles to extradition before the Berlin chief public prosecution office. He in particular referred to declarations in lieu of oath made by persons who had been detained in Hungarian prisons as well as to reports by the non-governmental organisation Hungarian Helsinki Committee. Subsequently, the Berlin chief public prosecution office contacted the Hungarian legal authorities requesting an assurance that, if surrendered, the applicant would be detained in a prison that complied with the requirements arising from the European Convention on Human Rights and the European Prison Rules. Moreover, the Berlin chief public prosecution office requested information on whether there have been assaults on detainees who identify as non-binary and whether any protection measures have been put in place in Hungarian prisons in this respect.

By verbal note of 29 April 2024, the Ministry of Justice of Hungary provided a written guarantee given by the Hungarian national prison authority. The declaration specified that the Convention, the United Nations Recommendations on Minimum Rules for the Treatment of Prisoners and the Recommendations of the Council of Europe on European Prison Rules constitute guiding principles that Hungary, as a member state of the European Union, has committed to and that have gradually been integrated in the way the Hungarian judicial authorities exercise their tasks. According to the written guarantee, there have been no known violent assaults or other attacks that are linked to gender identity.

Subsequently, the Berlin chief public prosecution office requested that the applicant’s surrender to Hungary be declared permissible. The applicant objected to this: He argued that evident obstacles to extradition could only be eliminated if the Hungarian judicial authorities made an assurance which is specific to this case and binding under international law. According to the applicant, the executing judicial authority cannot simply rely on a general assurance in the case at hand as there are specific indications that the detention conditions in several Hungarian prisons violate the prohibition of torture and inhuman or degrading treatment or punishment under Art. 4 of the Charter.

By order of 27 June 2024, the Higher Regional Court declared the applicant’s extradition to be permissible. The applicant’s authorised representative, by his own account, received the court order at 5:26 p.m. on the same day.

The Higher Regional Court found that there were no discernible obstacles to extradition and, in particular, that the detention conditions in Hungary did not pose an obstacle in this respect. According to the Higher Regional Court, it was unobjectionable that the written guarantee provided by verbal note of 29 April 2024 only described the general legal situation and the detention conditions in Hungarian prisons, without expressly guaranteeing, in a manner binding under international law, that the applicant’s detention conditions complied with human rights. The Higher Regional Court held that there were no specific indications that the detention conditions in Hungarian prisons violated the Convention and that, in any event, such violations could be challenged before the Hungarian courts.

Despite there being evidence of attacks on non-binary, homosexual or transsexual persons in Hungarian prisons, the fact that the applicant identified as non-binary also posed no obstacle to extradition according to the Higher Regional Court. It based this finding on the Hungarian authorities’ statement that a risk assessment is undertaken in all Hungarian prisons with respect to any kind of threat which may exist based on sexual orientation, gender identity, the detained person’s political views or origin or any other risk factor and that a risk management system ensures that the best measures are chosen to address any such risk. The Higher Regional Court further stated that the applicant’s prison registration documents will include the written guarantee and that a particularly thorough risk assessment will therefore be conducted, taking account of the fact that the applicant identifies as non-binary.

The applicant’s surrender to the Hungarian authorities was initiated in the night of 27 to 28 June 2024. On 28 June 2024 at 6:50 a.m., the German authorities handed the applicant over to the Austrian authorities for transit.

On 28 June 2024 at 7:38 a.m., the Federal Constitutional Court received the application for a preliminary injunction by which the applicant seeks a provisional prohibition of his surrender to the Hungarian authorities. At around 8:30 a.m., the Federal Constitutional Court informed the Berlin chief public prosecution office that the application for preliminary injunction had been received and inquired as to the current state of the proceedings. The Berlin chief public prosecution office informed the Federal Constitutional Court that the applicant had already been handed over to the Austrian authorities at around 6:50 a.m. At around 10:50 a.m., the Federal Constitutional Court adopted its order granting the preliminary injunction. The order was published at 11:00 a.m.

Key considerations of the Chamber:

1. The constitutional complaint against the Higher Regional Court’s decision on the permissibility of the extradition would neither be inadmissible from the outset nor manifestly unfounded. Further constitutional review is required as to whether the Higher Regional Court has sufficiently taken into account the significance and scope of Art. 4 of the Charter and the related duties to investigate the detention conditions awaiting the applicant in Hungary.

Firstly, it will be necessary to examine whether the Higher Regional Court has satisfied its duty to investigate the detention conditions. There may be doubts in this respect given that the Higher Regional Court considered the Hungarian national prison authority’s written guarantee to be sufficient despite there being no reference to the specific case at hand. These doubts may also arise because the Higher Regional Court stated that it could not be inferred from the applicant’s submissions that it would be impossible to detain prisoners in a way that complies with the Convention in any Hungarian detention facility. Even if a violation of the detention conditions under the Convention may be asserted before the courts of the state issuing the European Arrest Warrant, this does not, at least not automatically, make a judicial surrender permissible in case of there being a danger of inhuman detention conditions.

Secondly, closer examination is warranted as to whether, based on the information provided by the Hungarian authorities, it was permissible for the Higher Regional Court to assume that the protection of the applicant, who identifies as non-binary, was sufficiently guaranteed. This seems at least questionable. The Higher Regional Court stated that a risk assessment was undertaken ‘with respect to any kind of threat that may exist due to sexual orientation, gender identity, the detained person’s political views or origin or due to any other reason’, yet this degree of specificity cannot be derived from the written guarantee given by the Hungarian national prison authority.

2. It can thus not be ruled out that the constitutional complaint may be successful. The required weighing of consequences leads to the preliminary injunction being granted.

a) If the applicant were surrendered to the Hungarian authorities and it later became clear that the surrender was unlawful, the consequences would be more severe than if the applicant’s surrender were temporarily prohibited and it later became clear that the surrender would have been lawful. This is because in the former case the applicant would presumably no longer have the possibility to successfully assert his objections to the surrender. By contrast, the applicant could be surrendered to the Hungarian authorities at a later point in time, should it become clear that the planned surrender is lawful.

An additional aspect in the present case is that the initiated surrender would raise considerable concerns in terms of compatibility with the requirements of effective legal protection. Based on what is presently known, the surrender procedure started before the applicant had a realistic chance of discussing the Higher Regional Court’s permissibility decision with his legal advisers as well as examining and possibly already making use of the legal remedies that, albeit having no suspensive effect, are expressly provided for in the Act on International Mutual Assistance in Criminal Matters (Gesetz über die internationale Rechtshilfe in Strafsachen – IRG), including the possibility of applying for a new decision on permissibility under § 33 or asserting a violation of the right to be heard under § 77(1) of the Act on International Mutual Assistance in Criminal Matters in conjunction with § 33a of the Code of Criminal Procedure (Strafprozessordnung – StPO), as well as possibilities of legal protection under constitutional law.

Lastly, it must be taken into account that the Federal Constitutional Court can only effectively fulfil its responsibilities if it can review ordinary court decisions specifically as to their respect of fundamental rights. The constitutional complaint, which allows for independent review by the Federal Constitutional Court, is an instrument deliberately created to complement legal protection by the ordinary courts. It opens up the additional nationwide possibility of reviewing ordinary court decisions from a specialised fundamental rights perspective so as to safeguard the special weight accorded to fundamental rights vis-à-vis ordinary law and afford citizens protection in this regard.

Delaying a surrender to guarantee effective legal protection does also not conflict with the obligations under EU law regarding the execution of a European Arrest Warrant.

b) The Berlin chief public prosecution office must therefore take suitable measures during the surrender procedure – which, according to the information available to the Federal Constitutional Court at the time of decision, is still ongoing –, bringing about the applicant’s return to the Federal Republic of Germany.

c) Insofar as the Berlin chief public prosecution office informed the Federal Constitutional Court on 28 June 2024 at 11:47 a.m. of the applicant already having been handed over to the Hungarian authorities by the Austrian authorities at 10:00 a.m., the Federal Constitutional Court could not take this into account in its deliberation, which was concluded at around 10:50 a.m.