FEDERAL CONSTITUTIONAL COURT

– 2 BvR 2259/04 –

IN THE NAME OF THE PEOPLE

In the proceedings
on
the constitutional complaint

the Federal Constitutional Court – Second Senate –

with the participation of Justices:

Vice-President Hassemer,

Jentsch,

Broß,

Osterloh,

Di Fabio,

Mellinghoff,

Lübbe-Wolff,

Gerhardt

held on 6 July 2005:

1. The constitutional complaint is rejected as unfounded.

2. This also disposes of the motion for a temporary injunction.

Reasons:

A.

The constitutional complaint, which is accompanied by a motion for a temporary injunction, relates to the permissibility of extradition for the purpose of criminal prosecution in the United States of America, on account of first-degree murder, where the defendant, if convicted, would be sentenced to life imprisonment without the possibility of parole.

I.

1. The complainant, a U.S. citizen, was arrested on 7 July 2004. The arrest complied with an arrest warrant of the Superior Court for Marin County, California, of 13 November 1998 in conjunction with an indictment of the grand jury of the same date. In this, the complainant is charged with first-degree murder, burglary, false imprisonment through violence and threat, assault with a deadly weapon, assault with a firearm and cruelty to a child.

He is alleged to have stormed an apartment in Marin City, California shortly after midnight on 9 January 1997 with at least three other persons, carrying out a joint plan of action; there was a party taking place in the apartment at the time, and at least seventeen persons were present. The complainant and the other intruders are alleged to have had firearms with them and to have ordered all the guests to lie on the floor and not move. The complainant is then alleged to have killed the occupier of the apartment, with whom he is alleged to have had a dispute relating to drugs transactions, with seven shots.

2. In a diplomatic note of 27 August 2004, the United States of America submitted the extradition documentation and requested extradition of the complainant. In addition to the arrest warrant and the grand jury's indictment, the affidavits of a district attorney and a detective sergeant were submitted. According to these documents, if the complainant is found guilty of first-degree murder, he will be sentenced to life imprisonment without the possibility of parole. On 20 September 2004, the government of the United States of America gave assurances that the death penalty will not be sought and not imposed in the prosecution of the complainant.

3. The complainant filed objections to the permissibility of extradition. He submitted inter alia that the affidavits attached to the extradition documentation were incomplete; he stated that these contained incomplete or distorted accounts of the witness statements relating to the events. Against this background, it was to be feared that if he were prosecuted in the United States of America, he would be exposed to the risk of unfair procedures. He further submitted that extradition was inadmissible because the potential sentence was disproportionately harsh in relation to the offence committed. According to the complainant, the permissibility of extradition must be judged by the standards of German law. Under German constitutional law, the person prosecuted must at all events have the prospect of being released at some time in the future. Pursuant to the case-law of the Federal Constitutional Court, according to the complainant, this was required by the protection of human dignity. The complainant submitted that the punishment system of the United States of America did not comply with these requirements with regard to the imposition of life imprisonment without the possibility of parole that applies in the present case.

4. In an order of 5 November 2004, the Higher Regional Court held that the extradition of the complainant to the United States for prosecution of the offences listed in the Marin County Superior Court arrest warrant of 13 November 1998 was admissible. The extradition documents, the court held, complied with the requirements under the German-American extradition treaty. It stated that the requirement of the offences being punishable in both jurisdictions was satisfied. As a general rule, there was no review to determine whether the evidence in relation to suspicion of a criminal offence was sufficient. The court stated that it attached no significance to the alleged discrepancies in the affidavits, even if the affidavits did not set out in full the evidence taken. The court stated that the decisive factor with regard to prosecution was that charges had been brought pursuant to the decision of the grand jury, which was based on the assessment of all evidence taken up to that point, that is, including the evidence that was alleged to have been stated either incorrectly or not at all in the written affidavits.

Nor would extradition be inconsistent with essential principles of the German legal system (§ 73 of the Act on International Assistance in Criminal Matters, Gesetz über die internationale Rechtshilfe in Strafsachen – IRG ). The court stated that the United States had given assurances that the death penalty would not be sought and not imposed. The possibility that “imprisonment for life in the state prison without the possibility of parole” might be imposed on the complainant did not make the extradition inadmissible. It violated neither minimum standards of international law nor mandatory constitutional principles of the Federal Republic of Germany. According to a leading decision of the Federal Constitutional Court, life imprisonment did not violate the requirement to respect human dignity even if, in an individual case, it did actually continue until death. However, the prisoner must at least have the chance of regaining liberty.

This chance existed even in California in the case of a life sentence without the possibility of parole. Section 4801 of the Penal Code did not exclude the possibility of a pardon or a commutation of the sentence even in this case. However, the court stated, the prospect of being able to regain one's liberty only by way of a pardon would violate the principle of the rule of law.

But this very strict application of the principle of the rule of law, influenced by the experience of despotic rule under National Socialism, differed from the interpretation of many other states, nor was it one of the mandatory constitutional principles of our public order. It was sufficient if the law of the requesting state contained the possibility of parole or pardon or relaxation of imprisonment in the form of day release and made use of this possibility in practice. The court stated that in the United States, the possibility of pardon, which exists in law, or of commutation of sentence were used in practice. There were no indications that the complainant risked proceedings contrary to the rule of law in the United States. Concrete circumstances justifying such an assumption had neither been submitted nor were they otherwise apparent.

5. Thereupon the complainant filed a statement of objections. He stated that, in setting out the discrepancies in the affidavits attached to the extradition documentation, he had provided concrete evidence that it was to be feared that means contrary to the rule of law would be used in the present proceedings. There were therefore also special circumstances that made a review necessary to determine whether the evidence relating to the suspicion of a criminal offence was sufficient. With regard to the constitutionality of a life sentence, he stated, the Federal Constitutional Court had regarded the convicted person's possibility of having at all events the opportunity, under legally defined conditions, of regaining liberty as part of human dignity. The “opportunity of liberty” was the usual principle; only in exceptional cases was it admissible for a life sentence to continue until the end of a prisoner's life. United States criminal law, according to the complainant, reversed this relationship of the rule and the exception. Life imprisonment without early release was the rule, and early release, which was possible only by way of a pardon, was the exception.

According to the case-law of the Federal Constitutional Court, it was specifically not sufficient if the possibility of early release – as is the case in the United States – consisted merely in an undefined and indeterminate system of pardon. The practice of pardon in the United States, the complainant submits, is largely in the free discretion of the competent authorities. Finally, the opportunity of a pardon in the case of a life sentence without the possibility of parole was very slight precisely when, as in the present case, this punishment was imposed as a substitute for the death penalty, which would otherwise have been imposed.

6. The Higher Regional Court dismissed the statement of objections on the merits in an order of 18 November 2004, referring to its earlier order. It stated that, in the conviction of the court, the constitutional requirement of a review procedure modelled on judicial principles, which was derived from the principle of the rule of law, applied to the further enforcement of the penalty was not one of the fundamental principles of our constitutional system, by which the legal systems of other states should therefore also be measured in extradition matters.

II.

1. In his constitutional complaint, the complainant challenges a violation of Article 1.1, Article 2.2 sentence 2 and Article 19.4 of the Basic Law (Grundgesetz – GG ) in conjunction with Article 20.3 of the Basic Law.

He submits that he faces the risk of unfair procedures. According to the complainant, this risk arises from the fact that the affidavits attached to the extradition documentation contain accounts of the statements of the witnesses that are in part incomplete and in part incorrect, and therefore an offence of perjury may have been committed.

However, the essential obstacle to permissibility is the risk that the complainant is sentenced to life imprisonment without the possibility of parole. In the United States, it is the general rule in the case of such penalties that the prisoner dies in prison. Only in exceptional cases, according to the complainant, does the possibility of a pardon exist, but this is at the free discretion of the penal enforcement authority. The principle that a life sentence is constitutional only if there is a realistic chance of the prisoner regaining freedom at some time applies in extradition proceedings too. This area of human dignity, according to the complainant, is part of the core area of our understanding of fundamental rights today, and it may not be restricted under Article 19 of the Basic Law. If he is extradited, this gives rise to the risk that the execution of the life sentence without the possibility of pardon and without any other concrete chance of regaining his freedom will violate this very constitutional principle of the Basic Law.

2. The Federal Ministry of Justice, on behalf of the Federal Government, submitted that the imposition of a life sentence without the possibility of parole did not make the extradition of the complainant to the United States of America unconstitutional. German law requires a prospect of regaining freedom not merely by way of pardon but also by way of judicial proceedings; but this is not one of the mandatory constitutional principles. Californian criminal law contains the possibility of pardon. Article V, section 8 (a) of the Constitution of the state of California provides that the Governor may pronounce a discontinuance of execution of sentence, a pardon or a reduction of the sentence. This, according to the Ministry, is not a merely theoretical possibility; instead – as is proved by the statistics quoted by the Higher Regional Court – it is regularly used.

3. In response to the submissions of the Federal Ministry of Justice, the complainant made a supplementary submission that in his opinion the crux of the present case is not the potential sentencing to life imprisonment without parole, but instead the sentencing to life imprisonment without the possibility of early release, the legal effect of which is more drastic. He submitted that the statement of the Federal Ministry of Justice that the possibility of pardon is exercised regularly was incorrect. However, in the present case no importance attached to the question of the de facto application of law or of the “lack of formal provisions” governing the exercise of pardon, for the standard of review was not the practice, but the legal position found in the requesting state. Measured against this standard of review, extradition was inadmissible in view of the lack of a possibility for early release to be assessed in proceedings of a legal nature.

B.

The constitutional complaint is admissible but unfounded.

I.

The Higher Regional Court carried out no review under § 10.2 of the Act on International Assistance in Criminal Matters to determine whether the evidence was sufficient; there are no constitutional objections to the manner in which this was done. The complainant’s submission that the Higher Regional Court had had cause to carry out such a review because there were discrepancies in the affidavits attached to the extradition documentation does not constitute evidence of an infringement of the constitution. In this connection, the Higher Regional Court stated that at all events the suspicion was sufficiently founded by the grand jury’s indictment, which was based not on the affidavits, but on the evidence taken in the course of the criminal investigation proceedings. It was therefore not necessary to rely on the affidavits challenged by the complainant. In the constitutional complaint, the complainant made no submissions challenging these credible statements that could substantiate an infringement of the constitution.

II.

Insofar as the complainant asserts that the discrepancies in the affidavits referred to by him, which he alleges raise the suspicion of perjury, give rise to the fear that the United States would use unfair procedures in prosecuting him, sufficient evidence has neither been presented nor is it apparent. The discrepancies are not even set out in such a way that they could be reviewed. Regardless of this, the complainant does not set out to what extent incomplete affidavits might be attributable to the U.S. judicial authorities and thus might influence the prosecution. If these really are “incorrect” affidavits, then the district attorney and the sergeant would be responsible in the first place, in criminal as well as civil law; the suggestion that this could provide evidence that the complainant risks unfair proceedings in the USA is an unsubstantiated claim on the part of the complainant.

III.

Extradition where there is the possibility that a life sentence without the possibility of parole will be imposed (“lifelong imprisonment without the possibility of parole”) does not violate mandatory principles of the German constitutional system.

1. In extradition proceedings, the German courts are constitutionally required to review whether the extradition and the acts on which it is based satisfy the minimum standards of international law that are binding in the Federal Republic of Germany under Article 25 of the Basic Law and the mandatory constitutional principles of its public order (see Decisions of the Federal Constitutional Court (Entscheidungen des Bundesverfassungsgerichts – BVerfGE 63, 332 (337-338); 75, 1 (19); 108, 129 (136)).

The mandatory constitutional principles include the core area of the precept of proportionality, which may be derived from the principle of the rule of law. Under this principle, the competent institutions of the Federal Republic of Germany are barred from extraditing a person sought if the punishment the person faces in the requesting state is intolerably harsh and therefore appears unreasonable from every conceivable point of view. The criminal offence and the legal consequence must be appropriately coordinated with each other (see BVerfGE 50, 205 (214-215); 75, 1 (16); established case-law). Under Article 1.1 and Article 2.1 of the Basic Law, it is also one of the mandatory principles of the German constitutional system that a punishment that may be imposed or is imposed may not be cruel, inhuman or degrading. The competent institutions of the Federal Republic of Germany are therefore prevented from cooperating in the extradition of a person sought if that person must anticipate or serve such a sentence (see BVerfGE 75, 1 (16-17); 108, 129 (136-137)).

But the situation is different if the sentence to be served is merely to be seen as extremely harsh and, if assessed strictly against German constitutional law, could no longer be regarded as reasonable. For the Basic Law proceeds on the basis that the state constituted by it is integrated into the system of international law of the community of states (see Preamble, Article 1.2, Article 9.2, Articles 23 to 26 of the Basic Law und Order of the Second Senate of the Federal Constitutional Court of 14 October 2004 – 2 BvR 1481/04 -, Neue Juristische Wochenschrift – NJW 2004, p. 3407 (3408)). At the same time it requires that, in particular in matters of judicial assistance, the structures and contents of foreign legal systems and views of the law must in principle be respected (see BVerfGE 75, 1 (16-17); 108, 129 (137)), even if in detail they do not comply with domestic German views. If international extradition practice, which exists to mutual advantage, is to be maintained, and the Federal Government’s freedom of foreign policy is to remain untouched, the courts may treat only the violation of the mandatory principles of the German constitutional system as an insurmountable obstacle to an extradition.

2. The complainant himself does not claim that imposing and enforcing a life sentence of imprisonment without the possibility of parole contravenes the minimum standards of international law, and in view of the multifariousness of criminal-law systems and their systems of sanctions – even in the EU member states – it is not necessary to go into more detail on this point.

3. Nor does extradition subject to the potential imposition of a life sentence without the possibility of parole automatically violate mandatory constitutional principles of the public order of the Federal Republic of Germany. A life sentence without the possibility of parole is not in itself an intolerably harsh or inhuman punishment (a). The extradition of the complainant is also permissible, despite the potential sentence, pursuant to the constitutional requirements of the humane enforcement of a life sentence as they have been developed in the case-law of the Federal Constitutional Court (b).

a) In view of the severity of the offences with which the complainant is charged, including a count of first-degree murder, the sentence of imprisonment without the possibility of parole which may be imposed on the complainant in the United States cannot be regarded as intolerably harsh or inhuman.

In § 211.1 of the Criminal Code (Strafgesetzbuch – StGB ), the offence of murder carries a penalty of life imprisonment under German criminal law. The case-law of the Federal Constitutional Court contains no constitutional objections to the imposition of life imprisonment for the most serious homicide offences (see BVerfGE 45, 187 (254)). In principle, a sentence of life imprisonment for such extremely grave violations of legal interests is compatible with the constitutional requirement that penalties should be meaningful and moderate (see BVerfGE 45, 187 (254 et seq.); 64, 261 (271); Order of the Second Chamber of the Second Senate of the Federal Constitutional Court of 21 December 1994 – 2 BvR 1697/93 –, Neue Juristische Wochenschrift 1995, p. 3244, 3245 with further references).

b) Nor does the extradition of the complainant violate any mandatory constitutional principles with regard to the case-law of the Federal Constitutional Court on the enforcement of a life sentence.

aa) According to the case-law of the Federal Constitutional Court, the requirements for a humane prison regime include the possibility that persons sentenced to life imprisonment in principle have a chance of attaining their liberty at some future time (BVerfGE 45, 187 (229 and headnote 3, sentence 1)). It would be incompatible with human dignity (Article 1.1 of the Basic Law) if the convicted person, regardless of the development of his or her personality, had to abandon all hope of ever regaining liberty (see BVerfGE 45, 187 (245)). The same applies in the case of a sentence of life imprisonment where the court establishes a particularly high degree of culpability; here, in individual cases – without constitutional objections – a life sentence may indeed be enforced until the end of the prisoner’s life (see BVerfGE 64, 261 (272)). However, sets of circumstances where the prisoner has inwardly changed and ceased to be dangerous to the general public, but is strictly prevented, even after serving a very long sentence, even if he or she is advanced in years, from regaining liberty, and is therefore in advance sentenced to end his or her life in prison, are in principle foreign to the enforcement of custodial sentences under the Basic Law (see BVerfGE, loc. cit.).

In order to guarantee this prospect of regaining liberty in a manner that complies with the standards of the rule of law, according to the case-law of the Federal Constitutional Court, the institution of pardon is not in itself sufficient to make the enforcement of custodial sentences constitutional in the area of application of the Basic Law. Instead, for the enforcement of punishment in Germany, the principle of the rule of law requires that early release is carried out in a manner which is open to judicial review. The conditions subject to which a person serving a life sentence may be released on parole, and the procedure to be applied in such a case, must be laid down in statute (see BVerfGE 45, 187 (243 et seq. and headnote 3 sentence 2)). However, procedural details which strengthen and guarantee the practical prospects of regaining liberty in Germany are not among the mandatory principles of the German constitutional system which, in extradition proceedings, must also be complied with by the requesting state. All that matters in this case is that another legal system at all events offers a practical prospect of regaining liberty.

bb) The Higher Regional Court referred to the case-law of the Federal Constitutional Court and stated that a person sentenced to life imprisonment must at least have the prospect of regaining liberty. According to the court, this requirement is satisfied in the case of the complainant. For in California, if he were sentenced to life imprisonment without the possibility of parole, it would in principle be possible for him to be released early; for section 4801 of the Penal Code does not exclude a pardon or a commutation of the life sentence. Insofar as the principle of the rule of law in Germany, in the case of imposition of a life sentence and the enforcement of this sentence in Germany, requires that a potential release on parole is reviewed in a manner modelled on judicial procedure, this is not, according to the court, a mandatory constitutional principle which prevents the extradition of the complainant.

These remarks are unobjectionable under constitutional law.

(1) The Higher Regional Court recognised the standards derived from Article 1.1 of the Basic Law for a humane enforcement of a life sentence, and it reviewed whether the complainant has a practical prospect of regaining his liberty. It confirmed that this is the case, and the complainant was unable to provide evidence of well-founded constitutional objections. In this connection, it should be taken into account that the determination of the facts and the application of non-constitutional law are the responsibility of the competent non-constitutional courts. The Federal Constitutional Court also reviews matters in this respect, even in extradition cases, only by the standard of non-arbitrariness of Article 3.1 of the Basic Law (see BVerfGE 108, 129 (137)). There is no evidence that there has been an infringement of the constitution under these standards.

Insofar as the complainant points out that in the United States a pardon or a commutation of sentence is the exception in the case of persons sentenced to life imprisonment without the possibility of parole, whereas the enforcement of the sentence until the end of the prisoner’s life is the rule, this does not give rise to any well-founded doubts as to the assessment of the Higher Regional Court. The Higher Regional Court pointed out that the complainant, despite the sentence which may be imposed on him, in principle has the prospect, under section 4801 of the Penal Code, of regaining his liberty. Section 4801 a) sentence 1 of the California Penal Code reads as follows:

The Board of Prison Terms may report to the Governor, from time to time, the names of any and all persons imprisoned in any state prison who, in its judgment, ought to have a commutation of sentence or be pardoned and set at liberty on account of good conduct, or unusual term of sentence, or any other cause, including evidence of battered woman syndrome.

Consequently, the complainant too has the prospect that in the course of time the Board of Prison Terms may recommend him for pardon or commutation of sentence, for example on grounds of good conduct; the final decision on such a suggestion is made by the Governor. Ultimately, therefore, the complainant has a prospect – albeit possibly a reduced prospect when compared with the legal position in Germany – of not having in practice to serve a life sentence imposed on him until his death.

(2) The fact that in California pardon or commutation of sentence is not reviewed in a process modelled on judicial principles does not make extradition inadmissible. The requirement that the structures and contents of foreign legal systems and views of the law must in principle be respected (see B. III. 1. above) does excludes the possibility that the requirement that there is a judicial decision, which is based on the development of the state under the rule of law in Germany, is seen as a mandatory element of German public order in extradition matters. It is impossible to establish in general under what factual and legal conditions the hope of the prisoner to regain his or her liberty is realistically upheld. If, for example – as in the present case – this prospect can be based on an official practice of pardon, integrated in the legal system, there is no reason to refuse extradition on the basis that there is no procedure modelled on judicial proceedings as required under German constitutional law.