In an order published today, the First Chamber of the Second Senate of the Federal Constitutional Court granted a constitutional complaint lodged by a German national who identifies as non-binary and who was extradited to Hungary.
Hungarian authorities charged the complainant, together with other individuals, with attacking alleged far-right sympathisers in Budapest in February 2023. The complainant was arrested in Berlin in December 2023. On 27 June 2024, the Berlin Higher Regional Court (Kammergericht) declared the complainant’s extradition to Hungary to be permissible. By order of 28 June 2024, the First Chamber of the Second Senate of the Federal Constitutional Court issued a preliminary injunction that provisionally prohibited the surrender of the complainant to the Hungarian authorities (cf. Press Releases No. 55/2024 and 67/2024). In the interim, however, the complainant had already been surrendered to the Hungarian authorities.
In challenging their extradition, the complainant asserts, inter alia, that their right under Art. 4 of the Charter of Fundamental Rights of the European Union was violated.
The constitutional complaint is successful. The Berlin Higher Regional Court failed to satisfy its obligation to fully clarify the factual circumstances relevant to the complainant’s surrender. In particular, the Higher Regional Court failed to sufficiently investigate the detention conditions that awaited the complainant in Hungary.
Facts of the case:
Hungarian authorities charged the complainant with being a member of a criminal organisation and, together with other persons, attacking far-right sympathisers, or persons considered as such, in Budapest in February 2023. The complainant was arrested in Berlin in December 2023, on the basis of, inter alia, a European Arrest Warrant issued at the request of the Hungarian authorities.
The complainant asserted that there were obstacles to extradition. In particular, the complainant cited declarations in lieu of oath made by persons who had been detained in Hungarian prisons as well as reports by the European Committee for the Prevention of Torture and by the non-governmental organisation Hungarian Helsinki Committee. Additionally, the complainant asserted that it was necessary to take their non-binary identity into account. The Berlin chief public prosecution office subsequently contacted the Hungarian legal authorities requesting, among other things, an assurance that, if surrendered, the complainant would be detained in a prison that complied with the requirements arising from the European Convention on Human Rights and the European Prison Rules. The Berlin chief public prosecution office also requested information on whether there have been assaults on detainees who identify as non-binary and whether any protective measures have been put in place in Hungarian prisons in this respect.
By note verbale of 29 April 2024, the Hungarian Ministry of Justice provided a written guarantee given by the Hungarian national prison authority. The written guarantee specified that the Convention, the United Nations Recommendations on Minimum Rules for the Treatment of Prisoners and the Recommendations of the Council of Europe on European Prison Rules constitute guiding principles to which Hungary, as a member state of the European Union, has committed and which have gradually been integrated in the way the Hungarian judicial authorities exercise their tasks. According to the written guarantee, there have been no known violent assaults or other attacks that are linked to gender identity.
The Berlin chief public prosecution office thereafter requested that the complainant’s surrender to Hungary be declared permissible. The complainant objected to this, arguing that the evident obstacles to extradition could only be eliminated if the Hungarian legal authorities made an assurance that was specific to this case and binding under international law. According to the complainant, the executing judicial authority could not simply rely on a general assurance in the case at hand as there were specific indications that the detention conditions in several Hungarian prisons violate the prohibition of torture and inhuman or degrading treatment or punishment under Art. 4 of the Charter.
By order of 27 June 2024, the Berlin Higher Regional Court declared the complainant’s extradition to be permissible.
The Higher Regional Court found that there were no discernible obstacles to extradition and, in particular, that the detention conditions in Hungary did not pose an obstacle in this respect. According to the Higher Regional Court, it was unobjectionable that the written guarantee provided by note verbale of 29 April 2024 only described the general legal situation and the detention conditions in Hungarian prisons, without expressly guaranteeing, in a manner binding under international law, that the complainant would be detained under conditions complying with human rights requirements. The court held that there were no specific indications that the detention conditions in Hungarian prisons violated the Convention.
Despite the Hungarian Helsinki Committee providing evidence of attacks on non-binary, homosexual or transsexual persons in Hungarian prisons, the Higher Regional Court found that the fact that the complainant identified as non-binary also posed no obstacle to extradition. It based this finding on the Hungarian authorities’ statement that a risk assessment is undertaken in all Hungarian prisons with respect to any kind of threat which may exist based on sexual orientation, gender identity, the detained person’s political views or origin, or any other risk factor and that a risk management system ensures that the best measures are chosen to address any such risk. The Higher Regional Court further stated that the complainant’s prison registration documents will include information on the written guarantee and that the Hungarian prison authorities will therefore conduct a particularly thorough risk assessment, taking account of the fact that the complainant identifies as non-binary.
The complainant’s surrender to the Hungarian authorities was initiated in the night of 27 to 28 June 2024. On 28 June 2024 at 6:50 a.m., German authorities handed the complainant over to Austrian authorities for transit. Upon the complainant’s application for preliminary injunction lodged at around 7:38 a.m., the Federal Constitutional Court issued a preliminary injunction at 10:50 a.m. which provisionally prohibited the complainant’s surrender to Hungarian authorities. Additionally, the Berlin chief public prosecution office was instructed to take suitable measures to prevent the complainant’s surrender to Hungarian authorities and to bring about the complainant’s return to the Federal Republic of Germany. Only at 11:47 a.m. did the Berlin chief prosecution office inform the Federal Constitutional Court that the complainant had already been handed over to Hungarian authorities by Austrian authorities as of 10:00 a.m.
In their constitutional complaint, the complainant challenges the order issued by the Berlin Higher Regional Court on 27 June 2024.
Key considerations of the Chamber:
To the extent that the complainant asserts a violation of Art. 4 of the Charter, the constitutional complaint is admissible and well-founded.
I. The complainant continues to have a recognised legal interest in bringing a constitutional complaint. It is true that, given that the surrender has already taken place, the challenged order is now moot. However, the surrender to Hungary declared permissible by the Berlin Higher Regional Court constitutes a severe interference with fundamental rights that is still ongoing. This is because the complainant is currently being detained in a Hungarian prison. Additionally, due to the specific operative timeframe within which the surrender took place, the challenged order had already unfolded its full effect and became moot, rendering it effectively impossible for the complainant to obtain a decision on a constitutional complaint before the Federal Constitutional Court.
II. The challenged order violates the complainant in their fundamental right under Art. 4 of the Charter. The Berlin Higher Regional Court failed to satisfy its obligation under Art. 4 of the Charter to fully clarify the factual circumstances relevant to the complainant’s surrender.
1. The Berlin Higher Regional Court failed to sufficiently investigate the detention conditions that awaited the complainant.
Given the complainant’s detailed submissions, the Berlin Higher Regional Court had sufficient indications of systemic or generalised deficiencies regarding detention conditions. Among other things, the complainant pointed to increasing overcrowding in Hungarian prisons, violent attacks against detainees by other detainees or by prison staff, and a lack of legal remedies. The Berlin Higher Regional Court referred to a decision by the Celle Higher Regional Court, according to which there no longer were any specific indications as to the detention standards in a specific Hungarian prison violating Art. 4 of the Charter. The Celle Higher Regional Court reached this finding based on measures mandated by the Hungarian government in 2020 to tackle prison overcrowding, as well as on a report of 17 March 2020 by the Committee for the Prevention of Torture, which noted that standards in the prisons inspected had significantly improved. The Berlin Higher Regional Court, however, had before it evidence that contradicted this finding and that, in part, was more recent, in particular, the declarations in lieu of oath made by persons who had been detained in Hungarian prisons, as well as up to date reports by the Hungarian Helsinki Committee. The Berlin Higher Regional Court nevertheless chose to base its decision on the older decision of the Celle Higher Regional Court without sufficiently considering the more recent evidence before it.
Similarly, risks of treatment violating Art. 4 of the Charter cannot automatically be considered excluded based on the written guarantee by the Hungarian authorities. The Hungarian authorities only make general reference to the applicable legal framework, pointing to a 2013 law; they do not provide information as to the current actual detention standards or a specific assurance as to the complainant’s treatment. Additionally, at the time of its decision, the Berlin Higher Regional Court had already been informed as to which prison the Hungarian authorities had designated for the complainant’s detention in custody. In this respect, the next logical step would have been to seek more clarification on the detention standards in that particular prison. Moreover, guarantees given by the state requesting surrender do not relieve the competent court in the state receiving the request from the obligation to make a prognosis of current risks in order to assess the situation and evaluate the reliability of the assurance given by the requesting state. The challenged decision lacks an examination that is sufficient in this respect. The same applies with regard to the Hungarian authorities’ assurance that German consular officers and diplomats may access the prison to gain insights on detention standards and visit the complainant.
2. In view of the information provided by the Hungarian authorities, and given the complainant’s detailed submissions, it was also not possible to automatically assume, like the Berlin Higher Regional Court did, that the protection of the complainant, who identifies as non-binary, was sufficiently guaranteed.
The Berlin Higher Regional Court stated that a risk assessment would be undertaken ‘with respect to any kind of threat that may exist due to sexual orientation, gender identity, the detained person’s political views or origin or due to any other reason’, yet this degree of specificity cannot be inferred from the written guarantee given by the Hungarian national prison authority. Indeed, such an inference cannot be convincing for the mere reason that the Berlin Higher Regional Court still assumed in its detention order that current policies by the Hungarian government had to be considered gender-, homo- and transphobic and that equality measures which Hungary had once successfully implemented in support of homosexual and trans people were being rolled back in a discriminatory manner. Additionally, the Berlin Higher Regional Court had before it a recent report by the Hungarian Helsinki Committee, released on 27 May 2024, according to which lesbian, gay, bisexual, transsexual, intersexual and queer detainees in Hungarian prisons were at risk of discrimination in the form of verbal or physical harassment by other detainees or prison staff.
To the extent that the Berlin Higher Regional Court is of the view that the written guarantee in the complainant’s prison registration documents would ensure a particularly thorough risk assessment, taking account of the complainant’s non-binary identity, there is no indication in the submitted documents of the detainees’ gender identity being registered at all. In fact, the Hungarian authorities stated precisely that the detainees’ gender identity was not being registered. If attacks on detainees due to their gender identity have not been registered as such, it is unclear how discrimination due to gender identity is to be effectively targeted.