Bundesverfassungsgericht

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Protection of Fundamental Rights in Individual Cases is Ensured as Part of Identity Review

Press Release No. 4/2016 of 26 January 2016

Order of 15 December 2015
2 BvR 2735/14

In individual cases, protection of fundamental rights by the Federal Constitutional Court may include review of sovereign acts determined by Union law if this is indispensable to protect the constitutional identity guaranteed by Art. 79 sec. 3 of the Basic Law (Grundgesetz – GG). Such was the decision by the Second Senate of the Federal Constitutional Court with regard to the principle of individual guilt (Schuldprinzip) in an order published today. Under this principle, any criminal sanction presupposes that the offence and the offender’s guilt are proven in a procedure that complies with the applicable procedural rules. The principle of individual guilt is rooted in the guarantee of human dignity enshrined in Art. 1 sec. 1 GG. It therefore also has to be guaranteed in the context of extraditions pursuant to the Framework Decision on the European arrest warrant if they are meant to ensure the execution of sentences that have been rendered in the absence of the requested person. Based on these standards, the Senate reversed and remanded an order of the Düsseldorf Higher Regional Court (Oberlandesgericht) to extradite a US citizen to Italy where he had been sentenced in absence to a custodial sentence of thirty years. The complainant’s submission that, in Italy, he would not be provided with the opportunity of a new evidentiary hearing in which he would be able to be present requires further investigations by the Higher Regional Court.

Facts of the Case and Procedural History:

The complainant is a citizen of the United States of America. In 1992, by final judgment of the Florence Corte di Appello, he was sentenced in absence to a custodial sentence of thirty years for participation in a criminal organisation and import and possession of cocaine. In 2014, he was arrested in Germany on the basis of a European arrest warrant. In the context of the extradition procedure, he mainly submitted that he did not have any knowledge of his conviction and that, under Italian law, he would not be able to have a new evidentiary hearing in the appeals proceedings. Nevertheless, by the challenged order of 7 November 2014, the Higher Regional Court declared the extradition of the complainant to be permissible.

Key Considerations of the Senate:

The challenged decision violates the complainant’s right under Art. 1 sec. 1 GG.
1. a) As a rule, sovereign acts of the European Union and acts of German public authority – to the extent that they are determined by Union law – are, due to the precedence of Union law (Anwendungsvorrang des Unionsrechts), not to be measured against the standard of the fundamental rights enshrined in the Basic Law. However, precedence only applies insofar as the Basic Law and the Act of Assent permit or provide for the transfer of sovereign rights. Its scope is limited by the Basic Law’s constitutional identity that, according to Art. 23 sec. 1 sentence 3 in conjunction with Art. 79 sec. 3 GG, is neither open to constitutional amendments nor to European integration (verfassungsänderungs- und integrationsfest).
b) The identity review conducted by the Federal Constitutional Court safeguards the constitutional identity. As with ultra vires reviews, [identity] reviews may ultimately result in Union law having to be declared inapplicable in exceptional cases. To prevent German authorities and courts from simply disregarding the Union law’s claim to validity, applying Art. 23 sec. 1 sentence 3 in conjunction with Art. 79 sec. 3 GG in a manner that is open to European integration and the legal concept expressed in Art. 100 sec. 1 GG both require that declaring a violation of the constitutional identity is reserved for the Federal Constitutional Court.
In substance, identity review is a concept inherent in Art. 4 sec. 2 sentence 1 of the Treaty on European Union (TEU) and does not violate the principle of sincere cooperation within the meaning of Art. 4 sec. 3 TEU. The European Union is an association of sovereign states (Staatenverbund), of constitutions [Verfassungsverbund; sometimes referred to as multilevel constitutionalism], of administrations (Verwaltungsverbund) and of courts [Rechtsprechungsverbund; sometimes referred to as multilevel cooperation of courts], which is founded on international treaties concluded by the Member States. As “masters of the treaties” (Herren der Verträge), Member States decide through national legal arrangements if and to what extent Union law is applicable and is accorded precedence in the respective national legal order. It therefore does not contradict the openness of the Basic Law to European integration if the Federal Constitutional Court, in exceptional cases and subject to strict conditions, declares an act of the European Union to be inapplicable in Germany. The fact that identity review is a concept inherent in the treaties is additionally corroborated by the fact that the constitutional law of many other Member States contains provisions to protect the constitutional identity and to limit the transfer of sovereign rights to the European Union.
This does not entail a substantial risk for the uniform application of Union law, as the powers of review reserved for the Federal Constitutional Court have to be exercised with restraint and in a manner open to European integration. To the extent required, the Federal Constitutional Court will base its review of the European act in question on the interpretation provided by the European Court of Justice in a preliminary ruling under Art. 267 sec. 3 of the Treaty on the Functioning of the European Union (TFEU).
c) The constitutional […] identity […] includes the principles of Art. 1 GG. The protected interests that, according to Art. 23 sec. 1 sentence 3 in conjunction with Art. 79 sec. 3 GG, are not open to integration must not be touched. Against this backdrop, the Federal Constitutional Court, by way of identity review, guarantees, unconditionally and in any individual case, the protection of fundamental rights that is indispensable according to Art. 23 sec. 1 sentence 3 in conjunction with Art. 79 sec. 3 and Art. 1 sec. 1 GG.
d) The strict conditions that must be fulfilled for conducting an identity review are mirrored by an elevated threshold with regard to admissibility requirements for constitutional complaints in such cases. The complainant has to submit in detail and in a substantiated way to what extent the guarantee of human dignity is violated in the specific case.
2. The challenged decision by the Higher Regional Court transgresses the limits drawn by Art. 1 sec. 1 in conjunction with Art. 23 sec. 1 sentence 3 and Art. 79 sec. 3 GG.
a) The execution of the Framework Decision on the European arrest warrant may violate a complainant’s fundamental right enshrined in Art. 1 sec. 1 GG, because, from the perspective of German constitutional law, an extradition for the purpose of executing a sentence rendered in absence enforces, through criminal law, a reaction to socio-ethical misconduct, a reaction that is incompatible with the guarantee of human dignity and the rule of law (Rechtsstaatsprinzip) unless the accused’s individual blameworthiness (individuelle Vorwerfbarkeit) has been determined by the competent court.
aa) In Germany, criminal law is based on the principle of individual guilt, which is enshrined in the guarantee of human dignity and in the rule of law (Art. 20 sec. 3 GG) and which, due to Art. 79 sec. 3 GG, is part of the inalienable constitutional identity. The effectiveness of the principle of individual guilt is at risk if it is not ensured that the true facts of the case are determined. To mete out an appropriate sanction that also constitutes a socio-ethical reproach (sozial-ethischer Vorwurf) presupposes that the personality of the accused is taken into account and, therefore, as a rule, that the accused is present at the trial. It follows from the principle of individual guilt that minimum guarantees of the rights of the accused in criminal trials are needed, guarantees that ensure that the accused may present circumstances for consideration to the court, circumstances that may be exonerating or relevant for sentencing. The minimum guarantees of the rights of the accused in criminal trials that are mandated by the principle of individual guilt also have to be observed when deciding on an extradition executing a sentence rendered in the absence of the requested person.
bb) The court that decides on an extradition is under the obligation to investigate and establish the facts of the case, an obligation that also falls within the scope of Art. 1 sec. 1 GG. The relevant facts in particular include what kind of treatment the requested person will have to expect in the requesting state. It does not follow from this obligation that the German courts always have to review in detail the reasons for a request for extradition. This holds true in particular in the context of extradition proceedings within Europe, where the principle of mutual trust applies. However, this trust is shaken if there are factual indications that the requirements that are absolutely essential for the protection of human dignity will not be met if the requested person is extradited. The court that decides whether it is permissible to extradite the requested person is in this respect under an obligation to investigate the legal situation and the legal practice of the requesting state if the person concerned has submitted sufficient indications to warrant such investigations. The extent and the intensity of investigations, which the German court must conduct in this regard in order to ensure the respect of the principle of individual guilt, have to be determined in accordance with the nature and the significance of the indications submitted by the convicted person that the procedure falls below the minimum standards required by Art. 1 sec. 1 GG.
b) Safeguarding the principle of individual guilt, which is not open to European integration, justifies and requires a review according to the standard of the Basic Law of the Higher Regional Court’s decision, a review that is limited to procedural minimum rights. This is the case although the Higher Regional Court’s decision is determined by Union law. As a rule, the Framework Decision on the European arrest warrant is accorded precedence in the German legal system; according to the jurisprudence of the Court of Justice of the European Union, the Framework Decision exhaustively deals with extraditions following sentences rendered in absence of the requested person; this, however, does not relieve the Higher Regional Court from its obligation to ensure that the principles laid down in Art. 1 sec. 1 GG, in its manifestation as principle of individual guilt, are protected in the context of an extradition based on a European arrest warrant as well.
c) In the present context, however, there is no need for restricting the precedence of Union law by applying Art. 79 sec. 3 GG in conjunction with Art. 1 sec. 1 GG as the Framework Decision and the German Act on International Cooperation in Criminal Matters (Gesetz über die internationale Rechtshilfe in Strafsachen) require an interpretation that takes into account the minimum guarantees of the rights of the accused that are required by Art. 1 sec. 1 GG in the context of an extradition.
aa) The obligation to execute a European arrest warrant is already limited under Union law. According to Union law standards, a European arrest warrant is not to be executed if it does not meet the requirements stipulated by the Framework Decision, or if the extradition would entail a violation of Union fundamental rights. Art. 4a sec. 1 letter d (i) of the Framework Decision prescribes a procedure that allows for [the German version of the Framework Decision uses the word “kann”] the merits of the case, including fresh evidence, to be re-examined, and which “may” [the German version of the Framework Decision uses the word “kann”] lead to the original decision being reversed. This provision does not provide for discretion of the courts dealing with such a case; rather, the term “may” is used to describe the powers of the court and signifies more or less “to be able to” („in der Lage ist“). The fact that the member states of the European Union are bound by the Union fundamental rights, that the Charter of Fundamental Rights has an effect on secondary Union law, and the jurisprudence of the European Court of Human Rights argue in favour of such an interpretation, as well.
The fact that the principle of mutual trust does not apply without limits even according to Union law also signifies that the national judicial authorities, upon relevant indications, are authorised, and under an obligation, to review whether the requirements under the rule of law have been complied with, even if the European arrest warrant formally meets the requirements of the Framework Decision. Also under a Union law perspective, an effective judicial review presupposes that the court that decides about the extradition is able to conduct the relevant investigations as long as the extradition system established by the Framework Decision remains effective in practice. As a consequence, the requirements under Union law with regard to the execution of a European arrest warrant are not beneath those that are required by Art. 1 sec. 1 GG as minimum guarantees of the rights of the accused.

bb) In this respect, the Act on International Cooperation in Criminal Matters that transposes the Framework Decision into German law does not raise concerns with regard to the principle of individual guilt and its contents protected by the guarantee of human dignity.

d) The challenged decision by the Higher Regional Court does not fully meet these requirements.
aa) While the Higher Regional Court’s assessment that the complainant’s extradition is only permissible if he is provided with an effective legal remedy after his surrender is correct, the court failed to recognise the extent of its obligation to investigate and to establish the facts and thereby failed to recognise the significance and the scope of Art. 1 sec. 1 GG. In executing the Framework Decision on the European arrest warrant and the Act on International Cooperation in Criminal Matters, the courts have to ensure in every individual case that the rights of the requested person are safeguarded at least to the extent that the content of the rights is protected by Art. 1 sec. 1 GG. With regard to the principle of individual guilt, this includes that a requested person who has been sentenced in his or her absence and who has not been informed about the trial and its conclusion will at least be provided with the real opportunity to defend him- or herself effectively after having learned of the trial, in particular by presenting circumstances to the court that may exonerate him or her and by having them reviewed.

bb) The complainant asserted in a substantiated manner that the Italian procedural law does not provide him with the opportunity to have a new evidentiary hearing at the appeals stage. This assertion is corroborated by the fact that in the past several Higher Regional Courts refused to permit extraditions to Italy in cases in which the requested persons had been sentenced in their absence, arguing that under Italian law there was, at the appeals stage, no comprehensive judicial review of the decision on the merits. The Higher Regional Court was under an obligation to follow up on the substantiated and plausible objections made by the complainant. However, it contented itself with finding that a new evidentiary hearing in Italy “was at least not impossible” („jedenfalls nicht ausgeschlossen“). Its decision therefore violates the complainant’s rights under Art. 1 sec. 1 GG.

3. There is no need for a preliminary request to the European Court of Justice under Art. 267 TFEU. The way in which the Union law must be applied correctly is that obvious that there does not remain any room for reasonable doubts (acte clair). Consequently, there is no conflict between Union law and the protection of human dignity under the Basic Law in the case at hand.