Abstract of the Order of 24 March 2016

Third Chamber of the Second Senate
Order of 24 March 2016
2 BvR 175/16

Headnotes (non-official):

An extradition may not be declared to be permissible if there is no certainty that the requesting state will observe the principle of speciality, unless it has been waived. This condition is not met if the courts and authorities of the requesting state as a rule only comply with the principle of speciality upon formal protest against non-compliance in the individual case by the requested state’s government.

Summary:

I.

US authorities requested the extradition of the applicant, a Swiss national, for the prosecution of tax offences. This was based on an arrest warrant issued by the U.S. District Court, Southern District of New York, on 3 January 2012. In this arrest warrant, the applicant was charged with having conspired with other persons between 2007 and 2010 in New York and in other places to defraud the US-American tax authorities and the Internal Revenue Service (IRS) by evading taxes. Under US-American law, this conduct was punishable as conspiracy to defraud US-American tax authorities, to evade income tax, and to submit false income tax returns. The applicant was arrested on 2 February 2015. The Frankfurt am Main Higher Regional Court (Oberlandesgericht) ordered provisional arrest pending extradition. The applicant did not agree to simplified extradition proceedings. After having received the formal extradition request, the Higher Regional Court ordered formal detention pending extradition on 1 April 2015. The Higher Regional Court was of the opinion that the only offences punishable under German law that had been sufficiently corroborated by facts so far were those to the benefit of customers P and Q and that the other offences mentioned would require additional evidence to be submitted. The US-American authorities submitted further evidence. Thereupon, the Higher Regional Court extended the formal detention pending extradition to the offences for the benefit of customers R, S, T and U, but asked the US authorities to submit additional specific evidence with regard to customers P, Q, R, S, T and U. The US authorities provided those by brief of 24 August 2015.

By order of 19 October 2015 the Higher Regional Court declared the applicant’s extradition to be permissible with regard to the alleged offences for the benefit of customers P, Q, T and U, but impermissible with regard to customers R and S. To that extent, the court also voided the arrest warrant. This was based on the court’s view that in that regard there were no extraditable offences, as the documents submitted did not show that R and S had committed tax evasion, and therefore, under German law it was not possible for the applicant to have aided with that offence. In addition, conspiracy was no criminal offence under German law and the facts submitted did not amount to “forming a criminal organisation” punishable under German law.

By note verbale of 5 November 2015, the German Foreign Office told the US embassy that the Government of the Federal Republic of Germany agreed to the applicant’s extradition for the purpose of criminal prosecution in the US on the basis of the arrest warrant of the U.S. District Court, Southern District of New York, with regard to the offences for the benefit of customers P, Q, T and U. To the extent that the applicant was charged with further offences for the benefit of customers R and S, extradition was not granted. In addition, it informed the US that neither the German Federal Foreign Office nor the applicant had waived the US’ obligation to comply with the principle of speciality.

By brief of 11 November 2015, the applicant’s authorised representative applied for a new decision on the permissibility of the applicant’s extradition and for a stay of the execution of the extradition. He explicitly pointed to the Suarez decision of the Court of Appeals for the Second Circuit New York. In his view, the Court of Appeals denied the person who was later convicted to invoke the principle of speciality. The Court of Appeals’ decision was based on the following considerations: In its opinion, the principle of speciality as part of international law is a right of the requested state, but not an individual right of the accused; therefore, an individual can only validly invoke the principle of speciality if the requesting state’s government had formally protested before.

In its order of 22 December 2015, the Higher Regional Court rejected the applications for a new decision on the permissibility of the extradition and for a stay of the execution of the warrant for detention pending extradition. It admitted that the procedural rights of the accused were restricted to some extent following the Suarez decision because the U.S. Court of Appeals refused to consider a claim of non-compliance with the principle of speciality if the requested state had not lodged a protest with the US government. However, it held that the applicant had the right to ask the German Federal Government to lodge a protest, which the court considered to be sufficient.

In the constitutional complaint, the applicant challenged the Higher Regional Court’s orders of 19 October and 22 December 2015 as well as the Federal Government’s note verbale of 5 November 2015. He asserted that his fundamental rights under Articles 19.4, 2.1 in conjunction with 20.3, and 103.1 of the Basic Law had been violated.

II.

The Federal Constitutional Court decided that the constitutional complaint was only admissible in part. This concerned the part of the Higher Regional Court’s decision of 22 December 2015 in which the court had rejected the application for a new decision on the permissibility of the extradition. To that extent, the constitutional complaint was also well-founded.

The decision is based on the following considerations: When examining the permissibility of an extradition, the German Constitution requires the regular courts to review whether the extradition sought violates inalienable constitutional principles or the indispensable extent of fundamental rights protection. In particular in the context of extraditions with states that are not Member States of the European Union, the regular courts must in addition review whether the extradition and the acts on which it is based are in line with the minimum standards under public international law that have to be complied with pursuant to Article 25 of the Basic Law. The principle of speciality, which applies in the context of extraditions, is part of the general rules of international law. Therefore, pursuant to Article 25 of the Basic Law, German courts are required to verify whether the authorities and courts of the requesting state indeed observe that principle. If strict compliance with the principle of speciality is not ensured, the extradition would entail a serious violation of fundamental rights. If a fundamental rights violation can only be claimed under aggravated circumstances that are impermissible under German constitutional law, this fact must already be taken into account in the context of the decision on the permissibility of the extradition. § 73 of the German Act on International Cooperation in Criminal Matters (hereinafter: the Act) takes up these principles and transfers them to ordinary law by prohibiting mutual assistance where this would contradict the indispensable principles of the German legal order.

In its decision of 22 December 2015, the Higher Regional Court, in interpreting and applying § 73 of the Act, failed to recognise the significance of the second sentence of Article 2.2 of the Basic Law, or at the very least of Article 2.1 of the Basic Law in conjunction with Article 25 of the Basic Law. When reviewing whether the principle of speciality would be complied with, it did not take into account that the objective of § 73 of the Act is to protect the general rules under international law that are indispensable for the German legal order. This applies irrespective of whether these general rules also aim at protecting the person sought.

The Higher Regional Court failed to recognise the possible impact of the Suarez decision, namely that where it was not certain whether the principle of speciality would be complied with in the requesting state, the violations of the fundamental rights of the person sought would be serious in case of an extradition. In particular, the applicant would not be able to effectively defend himself against these violations. Referring him to the possibility of applying to the German Federal Government for help if the US did not comply with the principle of speciality, constitutes a denial of legal protection, which is incompatible with Article 19.4 of the Basic Law, against an illegal extradition that would violate fundamental rights.