Judgment of the Federal Constitutional Court on the European arrest warrant
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Judgment pronounced July 18, 2005 |
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| 1. Definition of the scope of protection of Art. 16 GG as a complex of citizenship and extradition ban 2. Extradition decisions are no longer political decisions in a constitutional state, they are legal decisions that are subject to judicial review in full. They require criteria that are structured according to the facts. |
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| Art. 16 and 19 para. 4 of the Basic Law |
The Federal Constitutional Court had declared the law on the European arrest warrant , EuHbG, to be null and void. The law interfered disproportionately with the freedom of extradition (Article 16, Paragraph 2 of the Basic Law), since the legislature had not exhausted the scope given to it by the EU framework decision on the European arrest warrant for an implementation into national law that was as gentle as possible on fundamental rights. In addition, due to the fact that the (extradition) approval decision cannot be challenged, the EuHbG violates the guarantee of legal recourse (Art. 19 (4) GG). The constitutional complaint of a complainant who was to be extradited to the Kingdom of Spain for prosecution on the basis of a European arrest warrant was thus successful. As long as the legislature did not pass a new implementation law - which has now happened - the extradition of a German national was therefore not possible.
What is new through this case law is the definition of the scope of protection of Article 16 of the Basic Law as a complex of fundamental rights consisting of citizenship and extradition protection, a benchmark by which the legislation on German citizenship will also be measured in the future.
central message
The decision is essentially based on the following considerations:
- The EuHbG violates the constitution because the legislature has not met the requirements of the qualified legal reservation from Article 16 (2) sentence 2 of the Basic Law. The ban on the extradition of Germans is based on Article 16 (2) sentence 1 of the Basic Law.
- The basic right, together with nationality, guarantees the special connection between citizens and the legal system they support. It corresponds to the relationship of the citizen to a free, democratic community that the citizen cannot be excluded from this association. However, this protection against extradition can be restricted by law under certain conditions. The restriction of extradition protection is not a waiver of an essential state task in itself.
- When the law implementing the framework decision on the European arrest warrant was passed, the legislature was obliged to implement the objective of the framework decision in such a way that the restriction of the fundamental right to freedom of extradition is proportionate. In particular, he had to ensure that the encroachment on the area of protection of Art. 16 GG is gentle. The extradition ban is intended to protect the principles of legal security and the protection of legitimate expectations for Germans affected by extradition. That was neglected
- In addition, the arrest warrant law has a protection gap with regard to the possibility of refusing extradition because of criminal proceedings pending in the same matter in Germany or because domestic proceedings have been discontinued or the initiation has already been refused. In this context, the legislature should have reviewed the provisions of the Code of Criminal Procedure to determine whether decisions by the public prosecutor to refrain from prosecution should be subject to judicial review with regard to possible extradition.
- The deficits of the legal regulation are not sufficiently compensated by the fact that the regulations of the European Arrest Warrant Act provide for the serving of a prison sentence imposed abroad in the home country. Although this is basically a protective measure for one's own citizens, it only affects the serving of the sentence and not already the prosecution.
- The holder of the fundamental right must be able to rely on the fact that his / her behavior in accordance with the applicable law will not be subsequently qualified as illegal (→ retroactive effect ). Anyone who as a German commits an act in his own legal area does not have to expect extradition to another state authority. On the other hand, the assessment is different if the alleged act has a significant international connection. Anyone who acts in a different legal system must expect to be held accountable here as well.
2. By excluding legal recourse against the approval of an extradition, the Arrest Warrant Act violates Article 19 (4) of the Basic Law ( guarantee of legal recourse ). The addition of factual reasons for rejection to the licensing procedure means that the licensing authority no longer only decides on foreign and general political aspects of the extradition request in the case of extraditions. It is not a political decision, it is a legal decision. Therefore, the extradition authority has to enter into a deliberation process, which in particular has the subject of criminal prosecution in Germany. This weighing decision serves to protect the basic rights of the persecuted and must not be withdrawn from judicial review.
Protection area of Art. 16 GG
The court sees nationality and the extradition ban as a complex of fundamental rights that work together and describes it based on the concept of home under international law . It establishes a comprehensive Status Negativus and Status Activus : Citizenship is a permanent connection between citizen and state. Once justified, it must not be resolved as a matter of principle, because durability is the ideal element. Precisely from the experience in the Third Reich, a group of citizens must not be defined away by law and excluded from this connection.
The principle of democracy also forbids referring citizens to another legal system, regardless of whether it is based on the rule of law and may be related to it, because they have mostly not helped to shape this other legal system and they can rely on the permanent effect of the German.
This fundamental right tolerates restrictions only in the narrowly defined and mutually delimited possibilities of Art. 16, all of which are to be designed in a manner that is gentle on fundamental rights and subject to complete legal control by the judiciary and observance of the principle of proportionality .
Legal consequences
The arrest warrant law was null and void. The legislature had to redesign the reasons and the procedure for the extradition of Germans. The Constitutional Court was not allowed to give him any further requirements. The extradition of a German was not possible until the legislature passed a new implementation law. However, extraditions could take place on the basis of the law on international mutual legal assistance in criminal matters (IRG) .
Special opinion by Judge Broß
Judge Broß follows the Senate majority in the result, but not in the reasoning. The arrest warrant law is already null and void because it does not take into account the principle of subsidiarity . An extradition of German nationals is only considered insofar as the realization of the state's right to prosecute in Germany would be doomed to failure for actual reasons in a specific individual case. Only then would the way be free for tasks to be performed by the next higher level - the member states of the European Union. The Senate misjudges the importance and scope of the principle of subsidiarity when it considers it permissible to provide for the extradition of Germans without any material restrictions in the case of offenses with a foreign element. The persecuted person's trust in his or her own legal system is particularly protected if the act on which the extradition request is based has a significant international reference. Here, above all, the state's duty to protect and the principle of subsidiarity would have to prove themselves - not only in the case of domestic offenses.
Special opinion of the judge Lübbe-Wolff
The judge Lübbe-Wolff shares the opinion of the majority of the Senate only to the extent that the arrest warrant law does not sufficiently take into account the fundamental rights, but does not follow the legal consequences. In order to rule out violations of the constitution, it would have been sufficient to state that, in certain specified cases, extraditions are not permitted on the basis of the law until the new constitutional regulation has been made. With the annulment of the entire law, on the other hand, extradition is excluded even in cases that are completely unproblematic under constitutional law - for example even the extradition of citizens of the requesting state for acts committed in that state. The Federal Republic of Germany is thus forced to violate Union law, which could have been avoided without a constitutional violation. On the basis of a stricter legal consequence, the extradition authority's new decision would not necessarily have to be in favor of the complainant.
Special opinion of the judge Gerhardt
In the opinion of Judge Gerhardt , the constitutional complaint should have been rejected:
- The annulment of the Arrest Warrant Act is not in accordance with the constitutional and Union law requirement to avoid violations of the Treaty on European Union as far as possible. The Senate contradicts the case law of the Court of Justice of the European Communities , which in its Pupino judgment of June 16, 2005, emphasized the principle of sincere cooperation between the member states in judicial cooperation in criminal matters, also and especially for the implementation of framework decisions. The protection goals pursued with the extradition ban of the Basic Law would be achieved by the framework decision and the European Arrest Warrant Act. The European Court of Justice, which is responsible for interpreting the framework decision, will oppose the enforcement of excessive criminal legislation in a member state. The European Arrest Warrant Act makes it possible to refuse extradition in cases in which the conduct of criminal proceedings abroad puts a disproportionate burden on the person concerned.
- Even if the constitutionally required proportionality test is not expressly mentioned in the law, according to the relevant clarification by the Federal Constitutional Court, there is no reason to assume that authorities and courts are disregarding their self-evident duty to observe this requirement. There is no legal protection deficit.
Impact: new law
The Bundestag and Bundesrat reacted to the ruling with a legislative procedure for a new EAW. The points criticized as unconstitutional by the Federal Constitutional Court were revised, and the remaining provisions were largely taken from the original law. The new law came into force on August 2, 2006.
Individual evidence
- ↑ Error in the thought system - During the negotiations on the "European arrest warrant", the government and parliament embarrassed themselves. The procedure becomes the acid test for Europe. - SPIEGEL 16/2005 of April 18, 2005
- ↑ European Arrest Warrant Act , Amendment Act to the IRG
Web links
literature
- Frank Schorkopf (Ed.), The European Arrest Warrant before the Federal Constitutional Court, Mohr Siebeck, Tübingen 2006
