Headnotes (non-official):
The right of asylum under Article 16a of the Basic Law does not only provide for a substantive right, it also imposes a procedural duty upon the state. In the context of extraditions and if there are any indications for political persecution, the relevant bodies reviewing the pending extradition are under a duty to assess autonomously whether the person to be extradited might face political persecution. They have to ascertain the relevant facts ex officio. In such cases, this usually entails the duty to consult the files relating to the asylum application, except that it is clear from the statements of the person concerned that no further insights can be gained thereof.
Political assurances may remove an obstacle to extradition unless it is to be expected, in exceptional cases, that the assurance will not be complied with. However, the obligation to examine the asylum application arises even if the requesting state submits political assurances. This is due to the fact that the examination may give rise to indications that the assurances might not be complied with.
Should a court not have taken into account the asylum application in the context of an extradition decision, the detention of the requested person for extradition purposes as such is not necessarily incompatible with the Constitution. With regard to sentence 2 of Article 2.2 of the Basic Law and the precept to expedite proceedings that follows from it, as well as the requisite proportionality of the extradition detention, the standards to be met for continuing or enforcing the detention may be stricter the longer it lasts.
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Summary:
I.
The complainant is a Russian national and a devout Muslim. According to him, after studying the Turkish language and the Quran in Istanbul/Turkey from September 2013, he entered Germany in May 2014. On 25 July 2014, he applied for asylum in Germany based on an alleged persecution by Russian authorities. In October 2014, he was arrested provisionally due to an Interpol arrest warrant. Later, in two decisions dating from November and December 2014, the courts ordered him to be detained for extradition purposes. One of those court orders explicitly mentioned his application for asylum. In December 2014, the Russian Attorney-Generalship formally requested the claimant to be extradited for criminal prosecution. In the request, it was alleged that the claimant had spent September to December 2013 in a Syrian militia camp in order to gain knowledge and practical skills intended for the use in the context of participating in terrorist acts on the territory of the Russian Federation punishable under Russian law as undergoing a training with the purpose of performing terrorist activities. The Russian Attorney-Generalship has given political assurances not to persecute the complainant politically, only to prosecute the criminal offence mentioned in the extradition request, and to permit him to leave the country after having served the sentence. The complainant claims that he must not be extradited for the following reasons: It was not true that he had been trained in a Syrian terrorist camp; the alleged crime would be a political one; the Russian Federation suspected any devout Muslim from the Caucasus who had left the country of terrorist activities and persecuted them. He would therefore face persecution for religious reasons, among others. In its order dating from January 2015, the Higher Regional Court of Schleswig-Holstein declared the extradition for criminal prosecution to be permissible and ordered continuation of the extradition detention.
The claimant challenged the order of the relevant Higher Regional Court by claiming that it violates his fundamental rights as protected by the second sentence of Article 1.1, Article 1.3, Article 2.1, sentences 1 and 2 of Article 2.2, Article 3.3, Article 4.1, and Article 16a of the Basic Law. He submitted that he, as a devout Muslim, wanted to escape from the risks of persecution by Russian authorities at home and therefore had applied for asylum in Germany. According to him, the allegations of the Russian Secret Service form part of the persecution. He is of the opinion that devout people who are at risk of state persecution due to their religious belief and irrespectively of their relationship to terrorism should, in doubt, be granted asylum.
II.
In so far as the court order permitted the complainant’s extradition, it violates his right to asylum under Article 16a of the Basic Law. The Higher Regional Court did not take into account the significance and scope of Article 16a of the Basic Law when deciding on the permissibility of extradition. While the court was aware of complainant’s application for asylum and while the statements of the complainant in the extradition proceedings gave clear indications for the possibility of an entitlement to asylum, the court did not take the right to asylum into account when deciding. Neither did it consult the asylum case file, nor did it question the complainant in this regard. Neither the challenged decision nor the file to the proceedings indicate that the court did recognise the relevance of Article 16a of the Basic Law for the case at hand at all.
Even in the case of political assurances with regard to non-political prosecution, to speciality of prosecution and to the right to leave the country after serving the prison term, examining and assessing the asylum claim is necessary to ascertain whether those assurances might be complied with in the case at hand.
With regard to the court’s order relating to extradition detention, the Federal Constitutional Court did not admit the complaint for decision. The aim of the detention, to enable both to conduct the proceedings and to enforce the extradition, allows for ordering and continuing the detention if the conditions for extradition might be met and if this can only be ascertained during the proceedings. At the time of the decision, it was not clear whether the complainant was entitled to asylum or whether there were other obstacles to extradition. These questions could be solved during the further proceedings by consulting the file relating to the application for asylum. Due to the gravity of the alleged crime and the duration of the extradition detention until then, the order continuing the extradition detention did not violate sentence 2 of Article 2.2, sentence 1 of Art. 104.1 of the Basic Law.
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