The German Federal Constitutional Court (GFCC) decided a lower court’s decision ordering the extradition of an individual to Turkey violated German law and Germany’s obligation deriving from international law.
The GFCC ruled that Turkey highly likely will not respect minimum standards deriving from international law. Therefore, an extradition decision which relied on the assurances provided by the Turkish government that the prosecution was not based on political grounds was unlawful and thus should be annulled.
Second Chamber of the Second Senate Order of 4 December 2019, 2 BvR 1832/19
1. When German courts decide on the permissibility of extraditions, they are constitutionally required to review whether the requested extradition would violate indispensable constitutional principles or indispensable standards of fundamental rights protection as guaranteed under Article 79.3 in conjunction with Article 1.1 and Article 20 of the Basic Law.
2. When determining the permissibility of an extradition, as a preliminary measure to the executive decision on granting the extradition, the competent courts must investigate all relevant facts of the case and sufficiently examine potential obstacles to extradition, which requires a full review of all legal and factual issues arising in this context. This includes the question whether the person sought could face political persecution in the receiving state.
I. The applicant is a Turkish national of Kurdish ethnicity and Alevi faith. In 2018, Turkish authorities issued an Interpol alert seeking the applicant’s arrest. This was based on a local arrest warrant issued in 2017 by a Turkish local court on the suspicion of homicide. When the applicant filed an asylum application in Germany in January 2019, he was taken into police custody and interrogated. He claimed that he had never committed the crime and that the prosecution against him was related to his political convictions. He gave evidence of other criminal proceedings against him for illegal possession of arms and for membership of a certain political party. He claims not to be a member of this party. Not only did the applicant substantiate his fear of political persecution, but he also gave evidence to the insufficient prison conditions. The Higher Regional Court issued an arrest warrant for detention pending extradition on 15 January 2019. The Turkish government provided assurances as to the prosecution not being based on political grounds and to the prison conditions being compatible with the requirement of Article 3 ECHR and the European Prison Rules. In September 2019, the Higher Regional Court declared the extradition to be permissible and ordered continued detention. The applicant lodged a constitutional complaint claiming this decision violated his right to life under Article 2.2 of the Basic Law and to effective legal protection under Article 19.4 of the Basic Law.
II. The Federal Constitutional Court decided that, to the extent that it declared the extradition to be permissible, the challenged decision of the Higher Regional Court violated the applicant’s right to effective legal protection under Article 19.4 of the Basic Law.
The decision is based on the following considerations:
German courts must review whether the extradition and the underlying measures observe the minimum standards of international law that are binding upon the Germany pursuant to Article 25 of the Basic Law. In accordance with this constitutional provision, German authorities and courts must take into account the general rules of international law in the interpretation and application of domestic law. Where there are indications suggesting a risk of political persecution in the receiving state, the competent authorities deciding on extradition matters are obliged to assess this risk independently. Only limited legal recourse is available against the subsequent decision granting an extradition; therefore, the Higher Regional Courts, as the competent courts in such matters, cannot satisfy their duties of investigation and review by merely referring to the possibility that the Federal Government may obtain assurances from the requesting state before granting the extradition.
In formal extradition proceedings, the judicial review of permissibility serves the purpose of affording the person concerned preventive legal protection. The judicial review of permissibility in general, and the review of whether there is a risk of political persecution in the receiving state in particular, aim to protect the person sought against the state interfering with their fundamental rights interests. It constitutes a violation of the first and second sentence of Article 2.2 of the Basic Law if an extradition were executed even though the person sought is at risk of political persecution in the receiving state. The Higher Regional Courts must give effect to these fundamental rights standards and ensure effective judicial review. Even though Article 16a.1 of the Basic Law does not give rise to a right to asylum in the present case, the central notion reflected in this provision must be taken into consideration, namely that protection be afforded against political persecution in the receiving state. If there are substantial grounds for assuming a risk of political persecution in the receiving state, the competent court must in principle declare the requested extradition impermissible. The courts must conduct an autonomous review, independent of any decisions made in asylum proceedings, as to whether the circumstances of the case fit the elements of risk of political persecution, as an obstacle to lawful extradition.
The receiving state must in principle be trusted as to its adherence to the rules of mutual legal assistance in criminal matters and of international law. This principle applies if and to the extent that there are no indications to the contrary, such as the existence of substantial grounds for assuming a risk of political persecution in the receiving state. This is the case if there are factual indications that indispensable constitutional principles, indispensable standards of fundamental rights protection, or binding minimum standards of international law pursuant to Article 25 GG would not be observed in the event of extradition. This requires convincing and reliable grounds for assuming that, specifically in the case at hand, it is highly likely that the receiving state will not respect minimum standards deriving from international law. According to established case-law of the Federal Constitutional Court, binding assurances under international law provided by the receiving state in the context of extraditions are suitable means for refuting possible concerns as to the permissibility of the requested extradition, provided that there is no reason to expect that the assurances will not be complied with in the individual case. However, such assurances do not exempt the court deciding on the permissibility of extradition from the obligation to conduct its own risk assessment, for instance regarding indications for a risk of political persecution in the receiving state. In this respect, the court’s appreciation of the submissions made by the applicant must be reasonable.
The challenged decision of the Higher Regional Court does not satisfy these constitutional standards given that the court failed to sufficiently investigate and review the risk of political persecution of the applicant in the receiving state. Rather, it relied on the assurances provided by the Turkish government that the prosecution was not based on political grounds. It failed to take sufficient account of the detailed information provided by the applicant.
With regard to the detention conditions, the Higher Regional Court’s decision also violates the right to effective legal protection given that it failed to sufficiently assess these conditions. Instead, it merely relied on the assurances given by the Turkish government that the conditions satisfied the requirements under Article 3 ECHR and the European Prison Rules.
To see English summary and original German version of the judgment, click here.