European arrest warrant II

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The European Arrest Warrant II decision of the Federal Constitutional Court is a decision of December 15, 2015 on jurisdiction against a European arrest warrant .

background

While the Federal Constitutional Court found in the Solange II ruling that Union law was fundamentally non - verifiable as long as the European Court of Justice offered comparable protection of fundamental rights, in the Lisbon judgment of 2009 the court had reserved the right to examine Union legal acts to determine whether they violated the unchangeable identity-creating elements Constitutional guarantees of the Basic Law according to Article 79.3 of the Basic Law, d. H. in particular violates human dignity (Article 1, Paragraph 1 of the Basic Law) and the constitutional principles of Article 20 of the Basic Law (so-called identity check ). Since the German legislature cannot restrict these constitutional guarantees in favor of the Union when transferring competences to the Union, the sovereign acts of the Union and measures based on them should not violate these guarantees.

The court took the decision of December 15, 2015 as an opportunity to further specify the procedural and substantive contours of the identity check with regard to its content, scope and admissibility. In the judgment, the court emphasizes that it unconditionally and on a case-by-case basis review measures based on Union law in the event of possible violations of human dignity in the context of identity checks.

Due to its importance for the relationship between German constitutional law and Union law, the resolution was sometimes referred to as Solange III . This term was previously used informally for the Lisbon judgment. The responsible Senate expressly endorses the term “Solange III” .

facts

A US national was sentenced to 30 years imprisonment in absentia by the Corte di Appello of Florence in absentia for membership of a criminal organization and for importing and possessing cocaine. In 2014 he was arrested in Germany following an extradition request from the Italian Republic based on a European arrest warrant from the Public Prosecutor General at the Corte di Appello in Florence from the same year. Extradition for the execution of the imposed custodial sentence was requested, although the European arrest warrant indicated that the detainee had not been personally served with the 1992 judgment on which he was arrested.

By order of November 7, 2014, the Düsseldorf Higher Regional Court nevertheless declared extradition to be permissible

The convicted person thereupon lodged a constitutional complaint and complained, among other things, of a violation of his fundamental rights under Article 1 of the Basic Law and of his fundamental right to a fair trial (Article 2 (1) in conjunction with Article 20 (3) of the Basic Law, Article 6 Para. 3 ECHR ). At no point did he know that an investigation or criminal case had been conducted against him in Italy. In addition, there was no guarantee that, after his extradition, he would be given the right to legal proceedings in which the allegations would be re-examined in fact and in law in his presence. His extradition was therefore to be refused according to the EU framework decision on the European arrest warrant (Art. 4a para. 1 RbEuHb).

Judgment of the Federal Constitutional Court

The constitutional complaint was successful. The decision of the Düsseldorf Higher Regional Court of November 7, 2014 was repealed.

The conviction of a defendant in his absence is not compatible with the right to a fair trial (Art. 104 GG) encompassed by the guarantee of human dignity, and European law also forbids extradition in the event of a “blatant refusal of a fair trial”.

The BVerfG saw the findings of the OLG on the question of whether the complainant had the opportunity to influence the procedure after the extradition, to comment on the allegations and to present exonerating circumstances as insufficient and referred the matter to the OLG back.

Case law of the European Court of Justice

In the Melloni judgment of the European Court of Justice in 2013, the latter had to assess a similar case constellation, but decided at the expense of a convicted person in absentia, presumably in order not to jeopardize the European arrest warrant and thus the uniform application of Union law.

With the Aranyosi and Caldararu judgment of April 5, 2016, the ECJ rejected the execution of a European arrest warrant due to the risk of inhuman or degrading treatment in the issuing member state due to the protection of human dignity under Union law, and thus reacted to the judgment of the Federal Constitutional Court by giving it a significantly higher one Sensitivity to fundamental rights showed as still in Melloni.

Web links

Individual evidence

  1. ↑ BVerfG, decision of December 15, 2015 - 2 BvR 2735/14
  2. ↑ Current term. Decision of the Federal Constitutional Court on the identity control of the Scientific Services of the German Bundestag No. 06/16, February 5, 2016
  3. ↑ Dana Burchardt: The exercise of identity control by the Federal Constitutional Court At the same time discussion of the decision 2 BvR 2735/14 of the BVerfG of December 15, 2015 (“Solange III” / “European Arrest Warrant II”), ZaöRV 2016, 527-551
  4. ^ LTO: Identity control: Karlsruhe wants communication . In: Legal Tribune Online . ( lto.de [accessed on May 17, 2017]).
  5. ↑ BVerfG, decision of December 15, 2015 - 2 BvR 2735/14, no. 25th
  6. ↑ ECJ C 399/11 - judgment of February 26, 2013 (Stefano Melloni v. Ministerio Fiscal)
  7. ↑ a b Haltern, Ulrich R., 1967-: European law: Dogmatics in context. Volume II: Rule of Law - composite dogmatics - basic rights . 3rd edition Tübingen 2017, ISBN 978-3-16-155344-8 .
  8. ↑ ECJ C-404/15 and C-659/15 PPU - judgment of the ECJ (Grand Chamber) of April 5, 2016 (Aranyosi and Caldararu)