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The following abstract was prepared by the Federal Constitutional Court and submitted for publication to the CODICES database maintained by the Venice Commission. Abstracts published by the Venice Commission summarise the facts of the case and key legal considerations of the decision. For further information, please consult the CODICES database.
Please cite the abstract as follows:
Abstract of the Federal Constitutional Court’s Order of 20 November 2014, 2 BvR 1820/14 [CODICES]
Abstract
Third Chamber of the Second Senate
Order of 20 November 2014
2 BvR 1820/14

Headnotes (non-official):

1. Decisions by regular courts on the legality of an extradition must show that the court scrupulously and for the individual case in question ascertained that the expected sentence in the country the accused is extradited to is commensurate to the crime committed.

2. The applicable standard of care rises proportionally to the degree to which the accused’s liberty is at stake.

Summary:

I.

The Federal Constitutional Court had to decide on a constitutional complaint as well as on an application for a preliminary injunction filed by a Turkish complainant who was held by German authorities and was facing extradition to the United States for criminal prosecution. He was inter alia charged with “conspiracy” to conduct cyberattacks on the networks of US and foreign companies.

II.

The Federal Constitutional Court ruled that it is permissible to extradite an accused individual to a country in which he or she faces a sentence of lifelong imprisonment without the possibility of parole as long as there is a possibility of him or her being released in the future. However, the courts deciding on the legality of the extradition must for each case ascertain that the sentence the accused faces in the country he or she is extradited to is commensurate to the crime committed.

The decision is based on the following considerations:

In applying the prohibition on arbitrary decisions enshrined in Article 3.1 of the Basic Law (Grundgesetz - GG) the Federal Constitutional Court is responsible for reviewing whether regular courts correctly applied the law. However, only decisions that appear completely unreasonable and that suggest that the regular court was led by illegitimate considerations constitute an arbitrary decision. This means that not every false interpretation of the law constitutes a violation but only such decisions that disregard clearly applicable rules or that misinterpret a rule’s content in a blatant manner.

The court deciding on the legality of an extradition is obliged to investigate the facts of the case ex officio. This includes ascertaining that the minimum standards imposed by international law, which are binding under Article 25 GG, are met and that the circumstances of the extradition comply with the essential principles of the Basic Law. These essential principles include the requirement of proportionality, which is derived from the fundamental rights as well as from the rule of law principle and which mandates that no German authority may allow an extradition that would expose the accused to a sentence that is unreasonably harsh or incommensurate with the crime committed. Another essential principle of the Basic Law under Articles 1.1 and 2.1 GG requires that sentences not be cruel, inhumane or degrading.

These principles are, however, not violated if the accused faces a sentence that would merely appear to be very harsh or unreasonable if viewed exclusively from the vantage point of German constitutional law. The Basic Law acknowledges that Germany is part of the international community and must respect foreign legal values and decisions if international cooperation in extradition proceedings is to succeed. Therefore, the Basic Law prohibits only such extraditions that would violate its essential principles.

Accordingly, cases that involve severe crimes may justify harsh sentences and even lifelong imprisonment without the possibility of parole as long as the accused has a possibility of someday regaining his or her freedom.

The decision to extradite in the case at hand did not meet these standards. The regular court did not make an individual determination of which kind of sentence the accused faced in the United States and whether such a sentence would be commensurate with the crime committed. Therefore, the decision violates the prohibition of arbitrary decisions enshrined in Article 3.1 GG.

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Additional Information

ECLI:DE:BVerfG:2014:rk20141120.2bvr182014

Please note that only the German version is authoritative. Translations are generally abriged.