Bundesverfassungsgericht - Press office -

Press release no. 64/2005 of 18 July 2005

on the judgment of 18 July 2005 – 2 BvR 2236/04 –

European Arrest Warrant Act void


In its judgment of 18 July 2005, the Second Senate of the Federal
Constitutional Court declared the European Arrest Warrant Act
(Europäisches Haftbefehlsgesetz) void. According to the Court, the Act
encroaches upon the freedom from extradition (Article 16.2 of the Basic
Law (Grundgesetz – GG)) in a disproportionate manner because the
legislature has not exhausted the margins afforded to it by the
Framework Decision on the European arrest warrant in such a way that the
implementation of the Framework Decision for incorporation into national
law shows the highest possible consideration in respect of the
fundamental right concerned. Moreover, the European Arrest Warrant Act
infringes the guarantee of recourse to a court (Article 19.4 of the
Basic Law) because there is no possibility of challenging the judicial
decision that grants extradition. Hence, the extradition of a German
citizen is not possible as long as the legislature does not adopt a new
Act implementing Article 16.2 sentence 2 of the Basic Law.
As a result, the constitutional complaint lodged by the complainant, who
is supposed to be extradited to Spain for criminal prosecution on the
basis of a European arrest warrant (Press release no. 20/2005 of 24
February 2005), was successful. The order of the Higher Regional Court
(Oberlandesgericht) and the judicial authority’s decision that grants
extradition were reversed.

Judge Broß, who agrees with the result of the judgment, Judge Gerhardt
and Judge Lübbe-Wolff have each appended a dissenting opinion to the
Federal Constitutional Court decision.

The decision is essentially based on the following considerations:
1. The European Arrest Warrant Act infringes Article 16.2 sentence 1 of
the Basic Law (ban on extradition) because the legislature has not
complied with the prerequisites of the qualified proviso of legality
under Article 16.2 sentence 2 of the Basic Law when implementing the
Framework Decision on the European arrest warrant.

The ban on the extradition of Germans is based on Article 16.2 sentence
1 of the Basic Law. The fundamental right that is enshrined therein
guarantees the citizens’ special association to the legal system that is
established by them. It is commensurate with the citizen’s relation to a
free democratic polity that the citizen may, in principle, not be
excluded from this association. The protection of German citizens from
extradition, can, however, be restricted by law subject to certain
prerequisites pursuant to Article 16.2 sentence 2 of the Basic Law. The
restriction of the protection from extradition is not a waiver of a
state task that actually is essential. The cooperation that is put into
practice in the “Third Pillar” of the European Union (police and
judicial cooperation in criminal matters) in the shape of limited mutual
recognition is a way of preserving national identity and statehood in a
single European judicial area, in particular with a view to the
principle of subsidiarity.

When adopting the Act Implementing the Framework Decision on the
European Arrest Warrant, the legislature was obliged to implement the
objective of the Framework Decision in such a way that the restriction
of the fundamental right to freedom from extradition is proportionate.
In particular, the legislature had to see to it that the encroachment
upon the scope of protection provided by Article 16.2 of the Basic Law
is considerate. The ban on extradition is precisely supposed to protect,
inter alia, the principles of legal certainty and protection of public
confidence as regards Germans who are affected by extradition. Persons
who are entitled to enjoy the fundamental right in question must be in a
position to rely on their behaviour not being subsequently qualified as
illegal where it complies with the law in force at the respective point
in time. The confidence in one’s own legal system is protected in a
particular manner where the act on which the request for extradition is
based has a significant domestic connecting factor. Whoever, as a
German, commits a criminal offence in his or her own legal area need, in
principle, not fear extradition to another state power. The result of
the assessment is different, however, where a significant connecting
factor to a foreign country exists as regards the alleged offence.
Whoever acts within another legal system must reckon with his or her
being held responsible there as well.

The European Arrest Warrant Act does not come up to this standard. It
encroaches upon the freedom from extradition in a disproportionate
manner. When implementing the Framework Decision, the legislature has
failed to take sufficient account of the especially protected interests
of German citizens; in particular, the legislature has not exhausted the
scope afforded to it by the framework legislation. It could have chosen
an implementation that shows a higher consideration in respect of the
fundamental right concerned without infringing the binding objectives of
the Framework Decision. The Framework Decision permits, for instance,
the executing judicial authorities to refuse to execute the European
arrest warrant if it relates to offences that have been committed in the
territory of the requested Member State. As regards such offences with a
significant domestic connecting factor, the legislature would have had
to create the possibility of refusing the extradition of Germans. Apart
from this, the Arrest Warrant Act shows a gap of protection concerning
the possibility of refusing extradition due to criminal proceedings that
have been instituted in the same matter in the domestic territory or
because proceedings in the domestic territory have been dismissed or
because the institution of proceedings has been refused. In this
context, the legislature should have examined the provisions of the Code
of Criminal Procedure to verify whether decisions by the Public
Prosecutor’s Office to refrain from criminal prosecution must be subject
to judicial review regarding a possible extradition. The deficiencies of
the legal regulation are also not sufficiently compensated by the fact
that the European Arrest Warrant Act provides the possibility of serving
in one’s home state a prison sentence that has been imposed abroad.
Admittedly, this is, in principle, a measure to protect the state’s own
citizens, but it merely concerns the serving of the sentence and not
criminal prosecution.

2. By excluding recourse to a court against the grant of extradition to
a European Union Member State, the European Arrest Warrant Act infringes
Article 19.4 of the Basic Law (guarantee of recourse to a court).

The European Arrest Warrant Act partly incorporates the grounds for
optional non-execution of the European Arrest Warrant that are provided
in the Framework Decision. In doing so, the German legislature has
essentially opted for a discretionary solution. What the fact that the
procedure for granting extradition is complemented by specified grounds
for refusing the grant gives rise to is that, in the case of
extraditions to a European Union Member State, the authority responsible
for granting extradition no longer merely decides on foreign-policy and
general-policy aspects of the request for extradition but has to enter
into a process of weighing up whose subject is in particular criminal
prosecution in the home state of the person affected. The fact that the
procedure for granting extradition is complemented by additional
constituent elements of offences that are contingent on discretion
results in a qualitative change of the grant. The decision to be made,
which is based on the weighing up of facts and circumstances, serves to
protect the prosecuted person’s fundamental rights and may not be
removed from judicial review.

3. The European Arrest Warrant Act is void. The legislature will have to
revise the grounds for the inadmissibility of the extradition of Germans
and will draft the case-by-case decision on extradition in such a way
that it is an act of application of the law which is based on weighing
up. Moreover, amendments are necessary as regards the drafting of the
decision on the grant of extradition and concerning the decision’s
relation to admissibility.
As long as the legislature does not adopt a new Act implementing Article
16.2 sentence 2 of the Basic Law, the extradition of a German citizen to
a European Union Member State is not possible. Extraditions can,
however, be performed on the basis of the Law on International Judicial
Assistance in Criminal Matters (Gesetz über die internationale
Rechtshilfe in Strafsachen – IRG) in the version that was valid before
the entry into force of the European Arrest Warrant Act.

Judge Broß’s dissenting opinion
Judge Broß agrees with the result of the decision of the Senate majority
but not with its grounds. In his opinion, the European Arrest Warrant
Act is void already because it does not take account of the principle of
subsidiarity (Article 23.1 sentence 1 of the Basic Law). He puts forward
that an extradition of German citizens is only a possibility if a
realisation of the state’s claim to criminal prosecution in the domestic
territory were doomed to fail for factual reasons in the particular
case. Only this would open the way for the duty to be performed on the
next highest level, i.e. by the European Union Member States. According
to Judge Broß, the Senate misjudges the meaning and scope of the
principle of subsidiarity and of the principle of proportionality where
the Senate considers it admissible to provide, in the case of offences
with a significant connecting factor to a foreign country, the
possibility of extraditing German citizens without any substantive
restriction. The confidence of the prosecuted person in his or her own
legal system is protected in a particular manner precisely where the act
on which the request for extradition is based shows a significant
connecting factor to a foreign country. It is above all in such cases
that the state’s duty to protect and the principle of subsidiarity must
prove their worth, not only in the case of offences with a significant
domestic connecting factor.

Judge Lübbe-Wolff’s dissenting opinion
Judge Lübbe-Wolff shares the Senate majority’s opinion that the European
Arrest Warrant Act does not take sufficient account of the fundamental
rights of persons potentially affected by it, but does not agree with
parts of the grounds and with the dictum on the legal consequences. She
states that to rule out violations of the constitution, it would have
been sufficient to establish that as regards certain specified cases,
extraditions on the basis of the Act are inadmissible until the entry
into force of a new regulation that is in conformity with the
constitution. The declaration of nullity of the law, however, rules out
extradition on account of a European arrest warrant also in cases that
pose no constitutional problems whatsoever – even, for instance, the
extradition of citizens of the requesting state on account of offences
committed in this state. The Federal Republic of Germany is thus forced
to infringe European Union law, a situation which could have been
avoided without infringing the constitution. On the basis of a more
restricted dictum on the legal consequences, which would have been
called for according to Judge Lübbe-Wolff, the new Higher Regional Court
decision which is due now need not necessarily be in favour of the
complainant because it has not yet been clarified whether the
complainant’s case falls within one of the groups of cases for which the
regulations of the European Arrest Warrant Act are insufficient.

Judge Gerhardt’s dissenting opinion
Judge Gerhardt takes the view that the constitutional complaint would
have had to be rejected as unfounded. He states that the declaration of
nullity of the European Arrest Warrant Act is not in harmony with the
precept under constitutional and European Union law of avoiding
violations of the Treaty on European Union wherever possible. With its
decision, the Senate contradicts the case-law of the Court of Justice of
the European Communities, which, in its Pupino judgment of 16 June 2005,
emphasised that the principle of the Member States’ loyal cooperation in
the area of police and judicial cooperation in criminal matters also,
and particularly, applies as regards the implementation of Framework
Decisions. According to Judge Gerhardt, the objectives of protection
that are pursued by the Basic Law’s ban on extradition are achieved by
the Framework Decision and the European Arrest Warrant Act. The Court of
Justice of the European Communities, which is competent to interpret the
Framework Decision, will counteract the enforcement of a Member State’s
excessive criminal legislation. The European Arrest Warrant Act makes it
possible to refuse extradition in cases in which prosecution abroad
would place a disproportionate burden on the person affected. Even if
the examination of proportionality, which is indicated under
constitutional law, is not explicitly mentioned in the Act, there are,
after the Federal Constitutional Court’s clarification to this effect,
no grounds for assuming that authorities and courts ignore their obvious
duty to observe this precept. There is no deficiency as regards legal
protection.

Judgment of 18 July 2005 – 2 BvR 2236 /04 –

Karlsruhe, 18 July 2005


This press release is also available in the original german version.