Bundesverfassungsgericht

You are here:

Unsuccessful constitutional complaint against a deportation to Tunisia

Press Release No. 34/2018 of 07 May 2018

Order of 4 May 2018
2 BvR 632/18

The deportation of a person posing a terrorist threat (Gefaehrder, “dangerous person”) to a receiving country where the death penalty might be imposed against the person concerned does not violate the Basic Law if it can be ruled out that the death penalty will be executed. The non-execution of a death penalty essentially commutes the latter to a sentence of life imprisonment; in this respect, it must also be ensured that a review of the de facto life sentence is legally and factually possible so that the prisoner has at least the prospect of release. For these reasons, the First Chamber of the Second Senate of the Federal Constitutional Court did not admit for decision the constitutional complaint of a Tunisian national, in an order published today; the complainant’s application for a preliminary injunction staying his deportation has thus become moot.

Facts of the case:

The complainant is of Tunisian nationality. He first entered Germany in 2003 in order to pursue university studies. In 2015, he re-entered Germany under a false identity, posing as a Syrian refugee. In August 2016, the Frankfurt am Main Higher Regional Court (Oberlandesgericht) ordered extradition detention (Auslieferungshaft) of the complainant based on an extradition request received from the Tunisian law enforcement authorities. According to the charges laid against the complainant, he had, as a member of a terrorist organisation in Tunisia, been involved in planning and carrying out terrorist attacks, which resulted in numerous casualties. In addition, he had been the subject of criminal investigations in Germany, inter alia, on the strong suspicion of supporting a terrorist organisation. By administrative decision of 9 March 2017, the competent immigration authority issued an expulsion order against the complainant and notified him of his impending deportation to Tunisia. His application to the regular courts for preliminary legal protection against this order was unsuccessful. His asylum application was rejected as manifestly unfounded. His application for preliminary legal protection against his impending deportation [following the conclusion of the asylum proceedings] was initially rejected by the administrative court (Verwaltungsgericht) on the condition that the Tunisian Government provided assurances guaranteeing, inter alia, that the complainant would not face the death penalty and that his treatment and conditions of detention would comply with the requirements deriving from the European Convention on Human Rights (ECHR). Subsequently, however, the administrative court stayed the deportation by order of 26 July 2017 as it had doubts whether the assurances provided by Tunisia in the meantime satisfied these conditions.

Following this, the Ministry of the Interior and Sports of the Land Hesse ordered on 1 August 2017 that the complainant be deported to Tunisia under § 58a of the Residence Act (Aufenthaltsgesetz) on the grounds that he had carried out terrorist activities in support of the “Islamic State”. At present, the complainant is held in deportation detention (Abschiebehaft); the current detention order is set to expire on 25 May 2018. Several complaints on points of law (Rechtsbeschwerden) filed against his deportation detention are still pending before the Federal Court of Justice (Bundesgerichtshof). The complainant unsuccessfully appealed the deportation order before the Federal Administrative Court (Bundesverwaltungsgericht). The Federal Administrative Court initially rejected his application for preliminary legal protection on 19 September 2017, allowing for the deportation of the complainant but only on the condition that a Tunisian government agency provided an assurance that “in the event that the complainant is sentenced to life imprisonment, there will be a possibility of reviewing the sentence with a prospect of the sentence being commuted or its length being reduced”. Following an extensive investigation into the facts of the case, the Federal Administrative Court modified its order on 26 March 2018 and rejected the complainant’s application for preliminary legal protection without any reservation. The complainant lodged a constitutional complaint against this decision and applied for a preliminary injunction staying his deportation.

The Federal Constitutional Court has stayed the deportation of the complainant until 7 May 2018 to allow for a thorough review of his constitutional complaint.

Key considerations of the Chamber:

1. The challenged court order does not violate the complainant’s right to effective legal protection. The Federal Administrative Court satisfied its obligation under constitutional law to sufficiently investigate the facts of the case. It conducted a comprehensive investigation into the legal and factual circumstances pertaining to the imposition of a death penalty in Tunisia. In this respect, the Federal Administrative Court ascertained what specific criminal charges are laid against the complainant in Tunisia, the current state of the relevant criminal proceedings, and the penalty range applicable with regard to the respective criminal offences. It submitted comprehensive and detailed questions to the Federal Foreign Office (Auswaertiges Amt), inquiring about the possibility that the death penalty – which will very likely be imposed against the complainant yet would be unenforceable under the Tunisian death penalty moratorium observed without exception since 1991 – would be commuted to a sentence of life or fixed-term imprisonment; the court also inquired whether, in this case, there would be legal and factual possibilities that the complainant could be considered for an early release on parole. Moreover, the Federal Administrative Court sufficiently investigated the treatment of persons sentenced to death under the Anti-Terrorism Act in force since 2015. Upon receiving the answers to these questions, annexed with the relevant documents, the court was not required to conduct any further inquiries in addition to the information already obtained.

2. The challenged decision does not violate the complainant’s right to life under Art. 2(2) first sentence of the Basic Law (Grundgesetz – GG). The Federal Administrative Court could reasonably assume that the death penalty likely to be imposed against complainant would not be executed. This assumption is based on sufficient factual considerations. According to the situation report (Lagebericht) of the Federal Foreign Office and the note verbale of the Tunisian Ministry of Foreign Affairs submitted in the proceedings before the regular courts, the death penalty is no longer enforced in Tunisia based on a moratorium observed since 1991. The continued observance of the moratorium was affirmed by the Tunisian authorities in the course of the factual investigation carried out by the Federal Administrative Court, including in relation to the specific case of the complainant.

3. The deportation order, which was upheld by the Federal Administrative Court, does not violate the complainant’s right to liberty of the person under Art. 2(2) second sentence GG in conjunction with the guarantee of human dignity under Art. 1(1) GG.

In the present case, the de facto life sentence resulting from the non-execution of a death penalty does not lead to a violation of Art. 2(2) second sentence GG in conjunction with Art. 1(1) GG. In accordance with the case-law of the Federal Constitutional Court, however, the requirement that prison sentences be executed humanely entails that a person sentenced to life imprisonment must, in principle, be given a specific and realistic prospect of release. This also applies in the event that the person concerned is surrendered to a foreign state. In this case, the domestic law of the relevant state must provide for a realistic prospect of the prisoner’s release. These requirements deriving from the Basic Law are further specified on the basis of Art. 3 ECHR. According to the case-law of the European Court of Human Rights, the guarantee of Art. 3 ECHR is violated if the relevant life sentence is not de jure or de facto reducible. A person sentenced to life imprisonment must, from the moment the sentence is imposed, have a prospect of release or a possibility for review of the length of the sentence. The convicted person is entitled to know, at the outset of his sentence, what he or she must do to be considered for release and under what conditions, including when a review of the sentence will take place or may be sought.

The Federal Administrative Court’s assessment that the situation in Tunisia satisfied these requirements is not objectionable under constitutional law. The Federal Administrative Court ascertained that for persons sentenced to death in Tunisia, the possibility of release from prison is contingent upon two steps. As a first step, the death penalty must be commuted to a life sentence by way of a presidential pardon. In a second step, a release on parole may be granted after a minimum of 15 years in prison have been served, either by way of specific proceedings set out in the Tunisian Code of Criminal Procedure or by way of a second presidential pardon also provided for under the Code of Criminal Procedure. Based on this information, the Federal Administrative Court could reasonably conclude that this mechanism for review would also be applied in the case of persons sentenced to death under the Tunisian Anti-Terrorism Act.