Successful constitutional complaints lodged by Russian nationals of Chechen origin against extradition

Press Release No. 88/2019 of 11 December 2019

Orders of 30 October - 2 BvR 828/19 - and 22 November 2019 - 2 BvR 517/19 -

There is a risk that persons facing extradition to Chechnya might be subject to political persecution, or to criminal proceedings that do not satisfy minimum standards, in the event that the competent local courts are situated in Chechnya. This risk cannot be eliminated by requiring, with a unilateral reservation in the note verbale to the Russian Federation granting the extradition request, that any future criminal proceedings against the persons concerned be conducted outside the North Caucasian Federal District. The Russian Federation had declared vis-à-vis the Federal Republic of Germany that, under Russian constitutional law, it could not guarantee a change in the venue of criminal proceedings in such manner and thus could not make any binding legal assurances in this regard. Against this backdrop, two constitutional complaints had challenged orders of the Brandenburg Higher Regional Court (Oberlandesgericht), by which that court had declared extradition of the complainants permissible. In its orders published today, the Second Chamber of the Second Senate of the Federal Constitutional Court granted the relief sought by the complainants, reversing the orders of the Higher Regional Court and remanding the matters for a new decision. In its reasoning, the Chamber found inter alia that it would run counter to the case-law of the European Court of Human Rights if unilateral reservations were regarded as sufficient safeguards in such cases.

Facts of the case:

Both constitutional complaints concern extradition requests by Russia in relation to Russian nationals of Chechen origin for criminal prosecution. Russian authorities had issued Interpol alerts seeking the complainants’ arrests. This was based on local arrest warrants issued by a Chechen district court on the suspicion of robbery charges against one complainant and drug charges against the other. The complainant in proceedings 2 BvR 828/19 had applied for asylum in Poland; he was not recognised as a refugee, but was granted subsidiary protection status. The complainant in proceedings 2 BvR 517/19 had also applied for asylum in Poland, but the asylum proceedings were discontinued after he left the country. Both complainants lodged asylum applications in Germany, which were rejected. While arrest warrants for detention pending extradition were issued in both cases, execution of the warrants was suspended. The Higher Regional Court declared extradition of the respective complainants permissible on condition that the criminal proceedings, remand detention and the execution of a possible prison sentence be carried out outside the North Caucasian Federal District. It also requested that members of the German consulate be granted visitor access to the respective complainants at any time as well as access to the criminal proceedings. Moreover, the Higher Regional Court set out the condition that the Federal Office of Justice (Bundesamt für Justiz) make the official granting of the extradition requests “contingent” upon the requirement that any future court proceedings against the complainants be conducted outside the North Caucasian Federal District.

Key considerations of the Chamber:

I. 1. According to the Federal Constitutional Court’s established case-law, when German courts decide on the permissibility of extraditions, they are constitutionally required to review whether the requested extradition would violate indispensable constitutional principles or indispensable standards of fundamental rights protection as guaranteed under Art. 79(3) in conjunction with Art. 1(1) and Art. 20 of the Basic Law (Grundgesetz – GG). German courts must further review whether the extradition and the underlying measures observe the minimum standards of international law that are binding upon the Federal Republic of Germany pursuant to Art. 25 GG. In accordance with this constitutional provision, German authorities and courts must take into account the general rules of international law in the interpretation and application of domestic law. In particular, this entails that the authorities and courts are in principle barred from interpreting and applying domestic law in a manner that is contrary to the general rules of international law. They must furthermore refrain from any act that would give effect, within the Basic Law’s scope of application, to a measure taken by non-German state organs that violates the general rules of international law and are barred from participating, in a substantial manner, in measures carried out by non-German state organs in violation of the general rules of international law. When determining the permissibility of an extradition, as a preliminary measure to the executive decision on granting the extradition, the competent courts must investigate all relevant facts of the case and sufficiently examine potential obstacles to extradition, which requires a full review of all legal and factual issues arising in this context. This includes the question whether the person sought could face political persecution in the receiving state. Where there are indications suggesting a risk of political persecution in the receiving state, the competent authorities deciding on extradition matters are obliged to assess independently, based on § 6(2) of the Act on International Cooperation in Criminal Matters (Gesetz über die internationale Rechtshilfe in Strafsachen – IRG) or corresponding provisions in extradition agreements, whether the person sought could face political persecution in the event of their extradition. Only limited legal recourse is available against the subsequent decision granting an extradition; therefore, the Higher Regional Courts, as the competent courts in such matters, cannot satisfy their duties of investigation and review by merely referring to the possibility that the Federal Government may obtain assurances from the requesting state before granting the extradition. In formal extradition proceedings, the judicial review of permissibility serves the purpose of affording the person concerned preventive legal protection. The judicial review of permissibility in general, and the review of whether there is a risk of political persecution in the receiving state in particular, aim to protect the person sought against the state interfering with their fundamental rights interests. It constitutes a violation of Art. 2(2) first and second sentences GG if an extradition were executed even though the person sought is at risk of political persecution in the receiving state. In interpreting and applying § 6(2) IRG or corresponding provisions in extradition agreements, the Higher Regional Courts must give effect to these fundamental rights standards and ensure effective judicial review. Even though Art. 16a(1) GG does not give rise to a right to asylum in the present cases, the central notion reflected in this provision must be taken into consideration, namely that protection be afforded against political persecution in the receiving state.

If there are substantial grounds for assuming a risk of political persecution in the receiving state, the competent court must in principle declare the requested extradition impermissible. The courts must conduct an autonomous review, independent of any decisions made in asylum proceedings, as to whether the circumstances of the case fit the elements of risk of political persecution, as an obstacle to lawful extradition. Under constitutional law, this follows from Art. 19(4) first sentence GG and the substantive legal interests protected under Art. 2(2) first and second sentences GG, which in this context are in keeping with the central notion enshrined in Art. 16a(1) GG; under ordinary law, it follows from § 6(2) IRG or corresponding provisions in extradition agreements.

The receiving state must in principle be trusted as to its adherence to the rules of mutual legal assistance in criminal matters and of international law; this is true not only with regard to the surrender of persons between EU Member States but also applies to ordinary extraditions under international law. In ordinary extraditions under international law, too, the requesting state has a significant interest in maintaining the existence and functioning of a system of mutual legal assistance. This will generally deter the requesting state from breaching its legal obligations, as this would invariably jeopardise the functioning of international cooperation in future extradition cases.

This principle applies if and to the extent that there are no indications to the contrary, such as the existence of substantial grounds for assuming a risk of political persecution in the receiving state. This is the case if there are factual indications that indispensable constitutional principles, indispensable standards of fundamental rights protection, or binding minimum standards of international law pursuant to Art. 25 GG would not be observed in the event of extradition. This requires convincing and reliable grounds for assuming that, specifically in the case at hand, it is highly likely that the receiving state will not respect minimum standards deriving from international law.

According to established case-law of the Federal Constitutional Court, binding assurances under international law provided by the receiving state in the context of extraditions are suitable means for refuting possible concerns as to the permissibility of the requested extradition, provided that there is no reason to expect that the assurances will not be complied with in the individual case. However, such assurances do not exempt the court deciding on the permissibility of extradition from the obligation to conduct its own risk assessment, for instance regarding indications for a risk of political persecution in the receiving state. In this respect, the court’s appreciation of the submissions made by the complainant must be reasonable.

2. Art. 19(4) first sentence GG enshrines a fundamental right to effective recourse to the courts, in as comprehensive a manner as possible, against acts of public authority. Where a person adversely affected by an envisaged state measure claims, in extradition proceedings, that the envisaged measure would result in non-permissible interferences with their rights, Art. 19(4) first sentence GG confers upon that individual a substantive right to effective judicial review. In reviewing state measures that interfere with fundamental rights, ordinary courts can only ensure respect for the applicable law and effective protection of relevant legal interests if they sufficiently investigate the facts of the case as the basis for their decision. Where a court chooses to refrain from exhausting certain means of investigation, it only satisfies the requirement of effective legal protection if the evidence in question would be inadmissible, inherently unsuitable, unattainable, or irrelevant for the court’s decision. By contrast, the court must not refrain from taking evidence simply because the necessary investigations would be particularly cumbersome and time-consuming.

II. Based on these standards, the Higher Regional Court’s decisions on the permissibility of the challenged extraditions cannot be upheld.

1. The admissible constitutional complaint in proceedings 2 BvR 828/19 is well-founded to the extent that the complainant claims that the challenged decisions violate his fundamental rights under Art. 2(2) first and second sentences GG.

a) In its findings, the Higher Regional Court itself assumes that the complainant would face a risk of political persecution in the North Caucasian Federal District. Under both the provisions of ordinary law and the corresponding provisions of the applicable extradition agreement, this risk constitutes a legal obstacle to extradition. In addition, the requested extradition would be contrary to the substantive legal interests protected under Art. 2(2) first and second sentences GG, and to the central notion reflected in Art. 16a(1) GG that protection be provided against political persecution in the receiving state.

b) The risk of political persecution, as assumed by the Higher Regional Court, cannot be eliminated by the Federal Government setting out a unilateral reservation in its note verbale granting the extradition, according to which the extradition is executed based on the understanding that the criminal proceedings in the requesting state will be conducted outside the North Caucasian Federal District.

In this regard, it was not necessary to decide in general whether a unilateral reservation that is contained in the note verbale through which the granting of the extradition is communicated to the receiving state, and that the receiving state implicitly accepts when its authorities receive the person sought, must be accorded the same legal treatment as an assurance made by the receiving state. Treating such unilateral reservations legally the same as assurances would at least require that the reservation unequivocally forms part of the respective extradition agreement under international law, and thus has the same binding legal force as a binding assurance provided by the requesting state.

In any case, the unilateral formulation of a reservation in the note verbale, as was ordered by the Higher Regional Court in its decision on the permissibility of the requested extradition, does not sufficiently guarantee that the complainant will not be subject to criminal proceedings in the North Caucasian Federal District. With such a reservation, the Federal Republic of Germany demonstrates its trust in specific conduct by the receiving state. However, the Russian Federation has already formally notified Germany with regard to the case at hand that Russian constitutional law rules out any guarantee regarding the requested change in venue in the relevant criminal proceedings, and that Russia can thus not make any legally binding assurances to this effect. In light of the detailed information provided by Russia on this legal background, it is not conceivable why the Higher Regional Court assumed that the unilateral reservation to be set out in the German note verbale would “in all probability” be observed by the Russian authorities in the complainant’s case. Moreover, this expectation is undermined by how the Russian authorities have handled similar cases in the past.

c) Legally treating the unilateral reservation, which the Higher Regional Court regarded as essential in the present case, the same as a binding assurance from the receiving state also runs counter to the case-law of the European Court of Human Rights. According to the European Court of Human Rights, the requested state must review, taking into account the circumstances of the individual case, whether the provided assurances are actually reliable and how much weight the assurances carry in an overall assessment. In assessing the reliability of assurances, the European Court of Human Rights looks inter alia at whether the wording of assurances is specific or general and vague; whether the state organ issuing the assurance has authority to act in a legally binding manner for the receiving state; whether it can be expected that regional governments regard assurances provided by the central government as binding; whether assurances were complied with in the past; and whether the conduct guaranteed in the assurance would be lawful or unlawful under the domestic law of the receiving state. These standards apply accordingly when assessing assurances in extradition matters under German constitutional law. In the present case, the Russian authorities expressly conceded that they could not guarantee in a legally binding manner that the request from Germany, namely that criminal proceedings be conducted outside the North Caucasian Federal District, would be fulfilled. The Russian authorities submitted that the decision on changing the venue of proceedings fell within the exclusive competence of the – independent – local trial court, and that the outcome sought by the German authorities could thus not be guaranteed. Moreover, according to the information provided by the Federal Ministry of Justice and Consumer Protection, similar expectations formulated by German authorities were not met in a relatively significant number of extradition cases.

2. The constitutional complaint in proceedings 2 BvR 517/19 is well-founded to the extent that the complainant claims a violation of his fundamental right under Art. 19(4) GG.

Based on the standards set out above, the Higher Regional Court’s decision to declare the extradition permissible cannot be upheld. The Higher Regional Court did not investigate the circumstances the complainant would face in a possible criminal trial in the North Caucasian Federal District. As the court assumed that the complainant would not be surrendered to that region, it did not consider it necessary to conduct an investigation into or legal review of whether indispensable constitutional principles, indispensable standards of fundamental rights protection and minimum standards under international law would be observed in a criminal proceedings conducted there. The court itself states that the current situation in Chechnya rules out any extradition to that region. As the Higher Regional Court considered it possible that the extradition was barred by a legal obstacle, it is already doubtful that the court could reasonably refute such obstacle merely by referring to safeguards that would yet have to be obtained in the subsequent executive procedure for granting the extradition. In this regard, it is decisive that the person concerned has only limited means of legal recourse and influence in the subsequent executive procedure. Before referring to unilateral conditions yet to be formulated in the subsequent procedure for granting the extradition, and before deciding to refrain from any further factual investigations, the Higher Regional Court would in any case have been obliged to review whether and to what extent such conditions are suitable for ensuring, with sufficient certainty, that the complainant will not be extradited to Chechnya. If this was not ascertainable, it would have been necessary to further investigate the facts of the case, including with regard to the situation in the North Caucasian Federal District, in the judicial proceedings in which the Higher Regional Court reviews the permissibility of the requested extradition. 

Had the Higher Regional Court conducted a review (including by requesting information from the Federal Office of Justice and the Federal Foreign Office) as to whether a unilateral condition regarding the change in venue for the criminal proceedings in the receiving state set out in the note verbale was sufficient for ensuring that the complainant will not be tried in Chechnya, the Higher Regional Court would also have been required to address the problems experienced with this approach. In similar cases, the Russian Federation has clearly stated vis-à-vis the Federal Republic of Germany that ordering a change in venue at this stage of the criminal proceedings would be contrary to the guarantee of one’s lawful judge under the Russian Constitution. According to the Russian submissions, only the competent local court, which in the present case is the Grosny Criminal Court, may effect a change in venue. Against this backdrop, it is not discernible how the Higher Regional Court justifies its trust that the Russian Federation will change the venue of the criminal proceedings against the complainant solely based on a condition that is unilaterally set out in the note verbale granting the extradition, despite the fact that Russia has already formally notified Germany that it could not provide any guarantee to this effect in view of the requirements of Russian constitutional law.

In this case, too, it was thus not necessary for the Federal Constitutional Court to decide in general whether a unilateral reservation in the note verbale through which the granting of the extradition is communicated to the receiving state, and that the receiving state implicitly accepts when its authorities receive the person sought, must legally be treated the same as assurances made by the receiving state. In light of the legal situation in Russia, the condition that the venue of criminal proceedings be changed to a venue outside the North Caucasian Federal District – a condition that the Higher Regional Court considers necessary and that would yet have to be formulated in the subsequent executive procedure for granting the extradition – does in any case not constitute a sufficiently reliable guarantee. As set out above, the case-law of the European Court of Human Rights, too, suggests that under the current circumstances, a unilateral reservation cannot be regarded as a sufficient safeguard.