The fact that the accused’s silence can be used to his or her detriment in criminal proceedings does not hinder extradition to the United Kingdom

Press Release No. 65/2016 of 14 September 2016

Order of 6 September 2016
2 BvR 890/16

Extraditions on the basis of a European arrest warrant are not impermissible on the mere grounds that the right not to incriminate oneself is not guaranteed to the same extent in the requesting state’s procedural law as is the case under German criminal procedural law and guaranteed by the German Constitution. The possibility under British criminal procedural law to use the accused’s silence to his or her detriment under certain circumstances is in contradiction to the right not to incriminate oneself as applicable under German criminal law and enshrined in the Basic Law. However, it does not violate the constitutional principles that are beyond the reach of European integration (integrationsfest). Only where the core content of the right not to incriminate oneself, which is inherent to human dignity, is affected, Art. 1 of the Basic Law (Grundgesetz – GG) is violated. Such was the decision of the Second Chamber of the Second Senate of the Federal Constitutional Court in an order published today. It thereby did not admit for decision a constitutional complaint by which the complainant had challenged his extradition to the United Kingdom of Great Britain and Northern Ireland for the purpose of criminal prosecution.

Facts of the Case:

The complainant holds both the Croatian and the Irish nationality. He was arrested on the basis of a European arrest warrant in Berlin on 4 February 2016. The European arrest warrant was based on an arrest warrant issued by the Central Hertfordshire Magistrates’ Court. That arrest warrant charged the applicant with having shot a man in in Hertfordshire on 26 April 1993. In an order, the Berlin Higher Regional Court (Kammergericht) declared the extradition to the United Kingdom to be permissible. In his constitutional complaint, the complainant challenged this order, mainly claiming that, if he were extradited to the United Kingdom, section 35 of the Criminal Justice and Public Order Act 1994 might be applied. He claimed that this section allowed the court and the jury to draw inferences from his silence to his guilt. In his opinion, this conflicted with the status of the accused’s right to remain silent in the German legal order and affected the constitutional identity of the Federal Republic of Germany.

On application by the complainant, the Federal Constitutional Court issued a preliminary injunction and temporarily suspended the surrender of the complainant to the authorities of the United Kingdom until a decision on the constitutional complaint. In its decision, the Chamber left the question unanswered whether using the accused’s silence to his detriment indeed violated Art. 1 sec. 1 GG and indicated that this was to be decided in the principal proceedings. It held however that the required weighing of consequences had to result in the issuing of a preliminary injunction. It argued that if it did not issue the preliminary injunction, but the constitutional complaint proved to be well-founded later, the complainant would incur severe and perhaps irreversible disadvantages by being surrendered to the authorities in the United Kingdom. In contrast, the delay in surrendering the complainant was held to carry less weight.

Key Considerations of the Chamber:

The constitutional complaint is partly inadmissible and for the rest unfounded. The challenged decision does not violate the constitutional principles which, according to Art. 23 sec. 1 sentence 3 in conjunction with Art. 79 sec. 3 of the Basic Law, are beyond the reach of European integration.

1. Regarding compliance with the principles of the rule of law and human rights protection, a Member State of the European Union in general deserves particular trust. However, the presumption under the principle of mutual trust is shaken if there are factual indications that the requirements indispensable for the protection of human dignity will not be met if the requested person is extradited. If it turns out that the requesting state does not comply with the minimum requirements laid down by the Basic Law, the competent court may not declare the extradition to be permissible (cf. German Federal Constitutional Court, Bundesverfassungsgericht – BVerfG, Order of the Second Senate of 15 December 2015 – 2 BvR 2735/14 – and the relevant press release, No. 4/2016 of 26 January 2016, which is also available in English).

The principle of the right not to incriminate oneself, which is guaranteed by the general right of personality and the right to a fair trial, encompasses the right of the accused in criminal proceedings to freely decide whether to make a statement (Aussage- und Entschließungsfreiheit). This includes that in criminal proceedings no one may be forced to incriminate oneself or to actively contribute to one’s own conviction. The obligation to incriminate oneself affects the human dignity of the person whose statement is used against him- or herself. Therefore, the accused’s right to remain silent in criminal proceedings has already for a long time belonged to the generally accepted principles of German criminal procedure. If the accused is entitled to a right to remain silent, this also entails that no adverse inferences may be drawn from his or her silence, at least not where the accused entirely refused to make a statement on the substance of the case, as the accused’s awareness that his or her silence can be used as evidence would indirectly subject the person to impermissible psychological pressure to make a statement. Otherwise, the right to remain silent derived from human dignity would be diminished in value.

However, while the principle of the right not to incriminate oneself is rooted in human dignity, this does not entail that every constitutionally guaranteed manifestation of that principle is also protected as such under Art. 1 GG. Art. 1 GG is only violated where the core content of the right not to incriminate oneself, as an inherent part of human dignity, is affected. This would be the case for instance where an accused is induced by means of coercion to incriminate him- or herself. In contrast, it does not follow directly from Art. 1 GG that the accused’s silence may under no circumstances be treated as evidence, and be used to his detriment, as the case may be. Therefore, an extradition based on a European arrest warrant is not impermissible on the mere grounds that the right not to incriminate oneself is not guaranteed in the procedural law of the requesting state to the same extent as is the case in German procedural law due to constitutional requirements. Rather, extradition is impermissible only if the core content of the right not to incriminate oneself as protected by Art. 1 is no longer guaranteed.

2. Measured against these standards, the Higher Regional Court’s challenged decision satisfies the requirements under constitutional law.

The right not to incriminate oneself is restricted under the Criminal Justice and Public Order Act 1994. This restriction, however, does not affect the core content of the right not to incriminate oneself. Therefore, no violation of human dignity, which is inviolable, is to be feared. In particular, the accused has the right to remain silent also under the Criminal Justice and Public Order Act 1994. While his silence can be treated as evidence under certain circumstances and can be used to his detriment, which can create an indirect pressure to make a statement, this does not reach the same level of seriousness as coercion to make a statement or coercion to incriminate oneself.

Furthermore, silence can only be used in addition to other means of evidence in the context of an overall assessment of all evidence to justify a conviction. Even when this can result in the accused feeling compelled to make a statement, he does not have to fear a conviction on the mere grounds of remaining silent. Rather, he can decide on the basis of the state of evidence whether to make a statement or not. Such pressure to make a statement, which in some circumstances may also occur under German procedural law in certain scenarios of what is known as partial silence (sogenanntes Teilschweigen), does not as such violate human dignity.

Finally, according to the established case-law of the European Court of Human Rights, it does not from the outset constitute a violation of Art. 6 of the European Convention on Human Rights if the accused’s silence can be used to his detriment. Rather, one must always consider the individual case. The case-law of the European Court of Human Rights supports the finding that an application of section 35 of the Criminal Justice and Public Order Act 1994 at least does not constitute a violation of human dignity.