Extradition lawyer with constitutional complaint

German Federal Constitutional Court's Order of 15. 06. 2016- 2 BvR 468/16 - successful Constitutional Complaint against the extradition of a German to Poland based on EAW.

The Federal Constitutional Court has upheld our constitutional complaint against extradition to Poland on the basis of a European arrest warrant.

On the basis of our application the Federal Constitutional Court annulled the decision of the Berlin Higher Regional Court (Kammergericht), which had previously declared admissible the extradition of our client to Poland (ruling from 15.06.2016 - 2 BvR 468/16).

The Federal Constitutional Court upheld the unambiguous breach of fundamental rights by the decision of the Berlin Court according to the Article 16 (2) Basic Law of Germany. We were hopeful to achieve this result in this case after the Federal Constitutional Court had previously acceded our urgent request in the same case and thus stopped the imminent extradition to Poland.

The success rate at the Federal Constitutional Court is not particularly encouraging. According to the official statistics of the highest German court, the rate is usually below 2% of all constitutional complaints received each year (2010 [1.71%], 2011 [1.62%], 2012 [2.78%], 2013 [46%], 2014 [1.92%], 2015 [1.89%]).

Our constitutional complaint concerned the extradition of a German national so that he could be prosecuted in Poland. With the introduction of the European arrest warrant, the extradition of German nationals was also possible within the EU. German nationals are not extradited to countries outside the EU.

The conditions for the extradition of German nationals within the EU result from Paragraph 80 IRG (internationale Rechtshilfe in Strafsachen – international legal assistance in criminal matters), according to which the extradition of a German for the purpose of prosecution is only admissible if:

1. it can be assured that the requesting Member state, after imposing a legally binding imprisonment or other sanction, is prepared to offer to the accused the option, if it is his desire, to surrender him to the German authorities so that his punishment can be enforced in Germany, and
2. the criminal act in question exhibits a relevant and important reference to the concerns of the requesting Member State in the EU.

A relevant reference to the respective EU Member State is generally provided when the criminal action which has been committed, in whole or in part, in its territory, or least occurred in substantial parts thereof. Furthermore, it is considered relevant if crime is a serious act with a typical cross-border character, which was also, at least partly, has been committed on its territory. Whoever commits an act in the EU abroad must expect to be held responsible there as well.

The Federal Constitutional Court submitted to the Court in Berlin that in individual cases a careful weighing-up is necessary even if all or part of the action was also carried out in Germany, although the conduct of the offense is seen to have occurred abroad. The weight of the allegation and the practical requirements and possibilities for effective prosecution with the protected interests of the accused (BVerfGE 113, 273, 303) are to be taken into consideration.