September 15, 2024 - In May 2024, we were delighted with the decision of the Federal Constitutional Court - 2 BvR 1694/23.  However, the successful constitutional complaint already had two equally important predecessors for us in 2023, namely - 2 BvR 1368/23 - and - 2 BvR 1838/22 -. All three constitutional complaints concern extradition for the purpose of prosecution or execution of a sentence.

German Lawyer on extradition

The fact that we have generally achieved something with these decisions of the Federal Constitutional Court in German extradition law can now be seen every day. In practice, we see every day that the public prosecutor's offices have become more cautious, demand more assurances from the requesting states and question more urgently in the problem countries what can be expected for an extradited person in the requesting state.

Lawyer on extradition-procedure in Germany

In the meantime, the higher regional courts are also following suit and taking the decisions of the Federal Constitutional Court as a basis. At our urging, the Schleswig-Holstein Higher Regional Court (1 AR 32/22) declared an extradition to Turkey inadmissible in its decision of September 9, 2024, and justified this as follows: “By order of May 21, 2024, the Senate requested that specifically formulated information be obtained. By order dated August 9, 2024, the Higher Regional Court informed the Public Prosecutor General of the State of Schleswig-Holstein that it was considering revoking the detention order if no information was provided by the Republic of Turkey within a further three weeks. No such information was provided within this period, so that the extradition detention had to be revoked and declared inadmissible”.

Lawyer on new Higher Regional Court decisions in extradition procedures

It should be noted that the Higher Regional Court of Schleswig-Holstein had previously declared the extradition admissible in the same case and only re-examined it on the basis of our application in accordance with Section 33 IRG. Pursuant to Section 33 (2) IRG, the Higher Regional Court can decide again on the admissibility of the extradition if circumstances become known after the decision of the Higher Regional Court that are suitable to justify a different decision on admissibility.

It should be noted that the Higher Regional Court of Schleswig-Holstein had previously declared the extradition admissible in the same case and only re-examined it on the basis of our application in accordance with Section 33 IRG. Pursuant to Section 33 (2) IRG, the Higher Regional Court can decide again on the admissibility of the extradition if circumstances become known after the decision of the Higher Regional Court that are suitable to justify a different decision on admissibility.

Lawyer on practice in extradition proceedings

One day later, the Higher Regional Court of Naumburg / Germany (1 AR 112/22 ) declared extradition to Turkey to be “currently inadmissible” in another case because the Turkish authorities had still not given assurances that had been requested in the meantime. In a note verbale dated January 10, 2024, Turkey had stated that the convicted person would be granted a retrial upon extradition with assurances of procedural principles based on the rule of law. However, this assurance raised more doubts than it clarified, because the persecuted person himself had tried to obtain a retrial at the jury court in Turkey in 2023 and was rejected. However, Turkey no longer gave a clear assurance, which was again requested, and clarified the contradictory possibilities for a retrial. For the Higher Regional Court of Naumburg (1 AR 112/22 ), the decisive factor in the end was that after a considerable period of time, there was still no reliable assurance.