Federal Constitutional Court - Press office -

Press release no. 116/2009 of 12 October 2009

Order of 9 October 2009 – 2 BvR 2115/09 –

Another successful constitutional complaint
against decisions granting extradition


The complainant, a German and Greek national, has for three and a half 
months been resisting his extradition for criminal prosecution, which is 
requested by the Greek authorities on the basis of by now three European 
Arrest Warrants. After the Federal Constitutional Court had decided last 
month already (see German press release no. 101/2009 of 4 September 
2009) that permitting the extradition on the basis of the first European 
Arrest Warrant had violated fundamental rights of the complainant, the 
Munich Higher Regional Court (Oberlandesgericht) again declared the 
extradition permissible on account of the second European Arrest Warrant 
and ordered the complainant to be placed under arrest pending 
extradition. The Chief Public Prosecutor again decided to permit the 
extradition. The complainant’s second constitutional complaint was 
directed against both decisions. The Second Chamber of the Second Senate 
of the Federal Constitutional Court granted the relief sought by the 
constitutional complaint to the extent that the complainant impugns the 
decision of the Chief Public Prosecutor permitting the extradition and 
the order of the Munich Higher Regional court to declare the 
complainant’s extradition for criminal prosecution permissible. The 
decisions were rescinded and were referred back to a different Higher 
Regional Court for a new decision on the extradition. The Chamber still 
does not object on principle to the extradition of a German national to 
Greece on the basis of a European Arrest Warrant; it finds, however, 
that the Higher Regional Court’s extradition order arbitrarily violates 
the complainant’s fundamental right to protection from extradition. The 
order falls short of the minimum requirements placed on the nature and 
the depth of the reasoning of judicial decisions because it passes over 
essential legal questions– again with regard to issues of limitation – 
and because it goes not far enough when ascertaining the facts of the 
case. 

According to the Federal Constitutional Court’s case-law, the 
constitutional standard of the ban on arbitrariness requires a 
non-constitutional court’s decision to give reasons inter alia if the 
reasons cannot already be unambiguously inferred from the law by the 
parties to the proceedings. Furthermore, in the law governing 
extradition proceedings, stricter requirements concerning judicial care 
follow directly from Article 16.2 sentence 1 of the Basic Law 
(Grundgesetz – GG), which demands a high degree of legal certainty. 
Accordingly, a charge may at any rate not be worded so vaguely that this 
makes the examination of bars to extradition impossible. In European 
Arrest Warrant proceedings as well, which serve to simplify extradition 
between the European Union Member States within an economic and judicial 
area that grows ever closer together, the non-constitutional courts must 
therefore examine as carefully as possible whether the specific charges 
describe punishable behaviour. They may not content themselves with 
merely performing a rough legal review. 

In the instant case, the violation of the fundamental right to 
protection from extradition resulted, on the one hand, from the fact 
that the Munich Higher Regional Court did not deal with the essential 
question of whether the charges at issue, which date back to the years 
2002 and 2003, might be statute-barred under German criminal law. Its 
cursory considerations regarding the lack of a statute of limitations 
for the prosecution of crimes to the detriment of the complainant do not 
live up to the constitutional requirements placed on the decision of a 
non-constitutional court. They are not viable and do not show that the 
legal situation has been examined. On the other hand, the Munich Higher 
Regional Court should also not have contented itself with merely stating 
that the extradition documents had been drafted in a sufficiently 
precise manner. In particular, it is not comprehensible that the charge, 
which merely describes, in a general fashion, the existence of business 
relations, and which is complemented by the allegation that in this 
context, fraud-related behaviour by the complainant, which is not 
explained any further, had taken place, was taken as the basis for the 
decision granting extradition. 


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