Constitutional Complaint against Extradition Decisions in Germany 

German Extradition Lawyers

Constitutional Complaint against Extradition Decisions in Germany

German Extradition Lawyers

As is well known, the final legal remedy in criminal extradition proceedings in Germany is the constitutional complaint to the Federal Constitutional Court (BVerfG). If there is a request under German criminal law for the extradition of a prosecuted person and the competent Higher Regional Court (OLG) considers the extradition to be admissible (favourable admissibility decision), a constitutional complaint can protect the person concerned from actual extradition.

To ensure that the complainant’s surrender to the authorities of the requesting state is provisionally prohibited, the constitutional complaint should always be combined with an application for a temporary injunction according to Section 32 of the German Act on the Federal Constitutional Court (BVerfGG). If no urgent application is filed, there is a risk that the complainant will be transferred to the requesting state before the Federal Constitutional Court even decides on their constitutional complaint.

The German law firm Schlun & Elseven offers competent and committed legal assistance to provide our clients with the support they need. Our lawyers have excellent expertise in extradition law and extensive experience conducting constitutional complaints.

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Extradition proceedings in Germany

Extradition proceedings form part of the international mutual legal assistance in criminal matters. Extradition between Germany and other states is regulated, particularly by the Law on International Mutual Legal Assistance in Criminal Matters (IRG). In addition, inter-state extradition agreements under international law may be concluded, which are then given priority.

The German extradition procedure is divided into two parts. It consists of the judicial admissibility procedure on the one hand and the official authorisation procedure on the other. The Higher Regional Courts (Oberlandesgerichte) are responsible for the admissibility decision (Section 13 (1) sentence 1 IRG). A unique feature of extradition cases is that no direct appeal can be lodged against the court decision. If the person concerned wants to appeal against a decision of the German Higher Regional Court on admissibility, their only recourse is to file a constitutional complaint with the Federal Constitutional Court.

Following a positive admissibility decision by the Higher Regional Court, the official authorisation is usually granted quickly. The approval decision is an intergovernmental act and a discretionary decision by the competent judicial authority. If the Higher Regional Court has made a positive admissibility decision, a corresponding authorisation will usually follow promptly. However, the judicial authority can also refuse this, for example, for (foreign) political reasons, if the requesting state itself was not prepared to comply with requests from mutual legal assistance in the past. If the grant is refused, the proceedings end. If, on the other hand, the extradition is granted, a binding treaty under international law is created between the two states.

Final Remedy: The Constitutional Complaint in Germany

The constitutional complaint is regulated in Article 93 (1) no. 4a of the German Basic Law, Sections 13 no. 8a, 90 ff. BVerfGG. It may be lodged by any natural or legal person who claims that one of their fundamental rights (Articles 1 to 19 GG) or a so-called proper equivalent to a fundamental right (Art. 20 (4), 33, 38, 101, 103, 104 GG) has been violated by a German public authority. Particularly relevant in extradition cases is the fundamental right to asylum from Art. 16a I GG and the principle of proportionality resulting from Art. 1 I, 2 I GG. Finally, the decision on extradition must also consider whether the human rights of the person concerned would be respected in the case of extradition, Art. 1 I GG in conjunction with Art. 3 ECHR.

If the Federal Constitutional Court finds a (fundamental) law violation in the admissibility decision of the Higher Regional Court, the extradition decision in question is set aside and referred back to the competent Higher Regional Court (Section 95 (2) BVerfGG).

The constitutional complaint must be lodged at the latest within one month after receiving the challenged decision and must contain a written statement of the grounds (cf. Section 93 (1) sentence 1 BVerfGG).

Right to asylum in cases of political persecution

The judicial decision on extradition can be challenged with a constitutional complaint and the result annulled if it violates the fundamental right under Article 16a (1) of the German Basic Law (GG). According to this, politically persecuted persons enjoy the right to asylum. This fundamental right is granted regardless of whether the person concerned is accused of a criminal offence in the extradition request. It thus protects against extradition.

By its nature, the right to asylum can only be granted to natural persons. This person must be threatened with political persecution in their home country so that extradition back to the home country is excluded.

Persecution is considered political in the sense of the right to asylum if the state takes the respective persecution measures for reasons that lie solely in the political conviction, the primary religious decision or unavailable characteristics of the persecuted person (BVerfG, decision of 09.04.2015 – 2 BvR 221/15). The latter include, for example, sexuality or membership of a social group (e.g., homosexuals or transgender people) or nationality.

The Principle of Proportionality: Unbearably Harsh Punishment

Under Section 73 sentence 1 IRG, any mutual legal assistance is inadmissible if it contradicts essential principles of the German legal system. In particular, the principle of proportionality must be observed, which is one of the elementary and indispensable constitutional principles.

Extradition is therefore inadmissible if, in the event of a conviction in the requesting state, there is a threat of an unbearably harsh punishment which appears unreasonable from every possible point of view and therefore does not comply with the principle of proportionality (cf. BVerfGE, decision of 16.01.2010 – 2 BvR 2299/09). Moreover, the punishment threatened or imposed must not be cruel, inhuman or degrading. Based on Article 1 (1) and Article 2 (1) GG, this is also one of the essential principles of the German constitutional order.

However, the assessment is not only based on German constitutional law. Instead, in mutual legal assistance, the structures and contents of foreign legal systems are to be respected and considered, even if they do not correspond in detail to the prevailing views in Germany (BVerfG, decision of 28.7.2016 – 2 BvR 1468/16).