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Extradition to the United States of America

Press Release No. 97/2003 of 13 November 2003

Order of 05 November 2003
2 BvR 1506/03

2 BvR 1506/03

The Second Senate of the Federal Constitutional Court rejected the constitutional complaint of a Yemeni citizen who challenged his extradition to the United States of America for criminal prosecution. This disposes of his motion for a temporary injunction. The decision has been adopted unanimously.

1. Facts of the Case:

The complainant, who is, according to his own statement, an adviser of the Yemeni Minister for Religious Foundations in the rank of a Secretary of State and imam of a mosque in Yemen, was arrested, together with his secretary (on this, see the [Link auf: parallel decision] of the Second Senate of 5 November 2003 - 2 BvR 1243/03 -), in Frankfurt am Main on the basis on an arrest warrant issued by a United States District Court. He is charged with having provided money, weapons and communications equipment to terrorist groups, in particular Al-Qaeda and Hamas, and with having recruited new members for these groups, between October 1997 and his arrest. A Yemeni citizen who worked as a confidential informant for the United States investigation and prosecution authorities had decisively induced the complainant, by means of conversations in Yemen, to travel to Germany. The complainant had been promised to bring him into contact with a person abroad who was willing to make a donation. According to the statement of his secretary, the decision to travel to Germany was based on the complainant's voluntary decision. The United States of America requested the complainant's extradition for criminal prosecution. The Republic of Yemen requested his repatriation to Yemen, arguing that the complainant had been abducted, contrary to international law, from Yemen to Germany. The United States assured that the complainant would not be prosecuted by a military tribunal pursuant to the Presidential Military Order of 13 November 2001 or by any other extraordinary court. In several orders, the Frankfurt am Main Higher Regional Court (Oberlandesgericht) declared the complainant's extradition admissible. This is challenged by the complainant. He challenges a violation of Article 101.1 S. 1 in conjunction with Article 100.2, Article 2.2 in conjunction with Article 25, Article 2.1, Article 2.1 in conjunction with Article 1.1 and Article 19.4, Article 103.1 and 103.2 of the Basic Law and of his right to a fair trial. The complainant argues that the Higher Regional Court, inter alia, would have had to refer the question whether a general rule of international law pursuant to which no one may be extradited who has been abducted from his or her state of origin to the requested state in order to circumvent the ban on extradition that is valid in the state of origin is an integral part of federal law to the Federal Constitutional Court for review. He further argues that he could be subjected to methods of interrogation that are contrary to the principle of a state governed by the rule of law in the case of his extradition to the United States.

2. The Senate's reasoning was essentially as follows:

The complainant's challenge of having been removed from his lawful judge does not result in the challenged decisions being overturned. Admittedly, the Federal Constitutional Court is the court that is authorised to clarify doubts that objectively exist concerning the existence and the content of a general rule of international law. What is doubtful in the present case are the appraisal of the circumstances under which the complainant reached Germany, and their possible legal consequences for the extradition proceedings. The Higher Regional Court was not authorised to itself remove the doubts about the consequences that "luring someone out of a country in a manner that is contrary to international law" has under customary international law. Moreover, the validity of the court's decision depends on these doubts. If the action of the Yemeni confidential informant on behalf of the United States investigation authorities were to be regarded as being contrary to international law, an obstacle precluding extradition could possibly result from this on the German side. There would be the risk that by extraditing the complainant Germany would support the United States' action that is possibly contrary to international law, which would make Germany itself responsible under international law vis-à-vis Yemen. This means that the Higher Regional Court's failure to refer the case to the Federal Constitutional Court was contrary to its obligations. However, in the case of a referral by the Higher Regional Court, the Federal Constitutional Court would have come to the conclusion that, at any rate for a case such as the present one, no uniform practice had evolved that regards the extradition as an infringement of international law. The challenged decisions are therefore not based on a violation of the obligation to make a referral to the Federal Constitutional Court, and the constitutional complaint is not successful.

Relevant state practice shows that the general rule of public law that is alleged by the complainant does not exist. The courts' case-law in this respect is heterogeneous. To the extent that the fight of most serious crimes such as the support of international drugs trade or of terrorism is concerned, luring someone out of a state's (in this case: the Republic of Yemen's) territorial sovereignty by means of trickery is not, at any rate to the extent that would be required to demonstrate state practice, regarded as an obstacle precluding criminal prosecution. Nothing different can apply as regards the existence of an obstacle precluding extradition.

In the present case, the complainant entered federal territory on account of an autonomous decision and motivated by his own interests. Admittedly, he was deceived by means of trickery. However, he was not subjected to direct force aimed at bending his will, and he was also not threatened with the use of force, and the trickery did not facilitate a subsequent forceful abduction. The acts of deception were not performed by German authorities, and they are also not attributable to them. Finally, there are no indications that would permit the assumption that the German authorities cooperated with the United States criminal prosecution and investigation authorities in an unlawful manner in order to induce the complainant to travel exactly to Germany. The challenged decisions also do not violate other rights of the complainant. In particular, the complainant's right to a fair trial and due process has not been infringed. The Higher Regional Court did not regard the use of a confidential informant in the investigation proceedings against the complainant as an infringement in this context. The court's reasoning is constitutionally unobjectionable. The complainant's rights under Article 2.1 in conjunction with Article 1.1 of the Basic Law and Article 19.4 of the Basic Law have not been violated to the extent that the Higher Regional Court did not investigate the facts any further as concerns methods of interrogation in the United States that are allegedly contrary to due process of law. In mutual assistance concerning extradition, the requesting state is, in principle, to be shown trust as concerns its compliance with the principles of due process of law and of the protection of human rights, especially if mutual assistance is rendered on the basis of treaties under international law. On the other hand, the United States precluded the possible application of the Presidential Military Order of 13 November 2001 by their assurance. Thus, the United States have entered into the obligation, which is binding under international law, neither to bring the complainant before a military tribunal after his extradition nor to apply the procedural law that is provided in the Presidential Military Order nor to take the complainant to an internment camp. Instead, it can be assumed that the complainant will be brought before an ordinary criminal court.

Order of 5 November 2003 - 2 BvR 1506/03 -
Karlsruhe, 13 November 2003