Germany: The European Arrest Warrant case

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1 Developments Developments Correspondents Daphne Barak-Erez (Israel), Rodrigo Correa (Chile), Mark Elliott (United Kingdom), Simon Evans (Australia/New Zealand), Tania Groppi (Italy), Susi Dwi Harijianti (Indonesia), Raj Kumar (India/Asia), Christine Langenfeld (Germany), Jibong Lim (Korea), Wanda Mastor (France), Shigenori Matsui (Japan), Anashri Pillay (South Africa), Beate Rudolf (European Union/ European Court of Human Rights), David Schneiderman (Canada), Benny Tai (China/ Hong Kong), Caroline Taube (Scandinavia/Baltic States), Li-ann Thio (Singapore), Alexei Trochev (Russia/CIS), Renata Uitz (Hungary) Germany: The European Arrest Warrant case Nicolas Nohlen * Decision of the German Constitutional Court of July 18, 2005 European Arrest Warrant Act implementation of EU framework decision freedom from extradition guarantee of recourse to a court On July 18, 2005, the Second Senate of the German Constitutional Court declared the European Arrest Warrant Act 1 to be contrary to the German Constitution (Grundgesetz, or Basic Law) and thus void. 2 In the opinion of the Court s majority, the act a national law intended to implement the EU s framework decision regarding the European Arrest Warrant (EAW) 3 had infringed on the freedom from extradition for German nationals and the guarantee of recourse to a court enshrined in articles 16.2 and 19.4 of the Basic Law. Three of the eight judges within the Second Senate issued dissenting opinions. 4 * Doctoral candidate, University of Heidelberg. nicos.nohlen@studzr.de 1 Europäisches Haftbefehlsgesetz [European Arrest Warrant Act], July 21, 2004 BGBl. I at 1748 (F.R.G.). 2 Europäischer Haftbefehl, 113 BVerfGE 273 (2005), available in English at (last visited February 2007); reprinted in 32 EUROPÄISCHE GRUNDRECHTEZEITSCHRIFT (EuGRZ) (2005). 3 Council Framework Decision of June 13, 2002 on the European Arrest Warrant and the Surrender procedures between Member States, 2002 O.J. (L 190) 1 (July 18, 2002). 4 Judge Siegfried Broß (paras ), who concurred only in the result of the judgment, as well as Judge Gertrude Lübbe-Wolff (paras ) and Judge Michael Gerhardt (paras ). The Author Oxford University Press and New York University School of Law. All rights reserved. For Permissions, please journals.permissions@oxfordjournals.org I CON, Volume 6, Number 1, 2008, pp doi: /icon/mom041 Advance Access publication December 28,

2 154 I CON January 2008 Vol. 6: 153 The case had reached the Court by way of a constitutional complaint by Mamoun Darkazanli, a German and Syrian national, who feared extradition to Spain for criminal prosecution. The appropriate German judicial authorities had already accepted the Spanish request for the surrender of Mr. Darkazanli allegedly, a key figure in the European al-qaeda network on the basis of a European arrest warrant. Mr. Darkazanli successfully challenged both the constitutionality of the grant of extradition and the EAW act itself. As a consequence of the judgment, no German national could be extradited to a member state of the European Union until the German legislature had passed a new law conforming with the Basic Law. At this point, extraditions could be performed only on the basis of the Law on International Mutual Assistance in Criminal Matters, International Mutual Assistance Act [Gesetz über die internationale Rechtshilfe in Strafsachen, Internationales Rechtshilfegesetz] (IRG), in the version valid before the entry into force of the EAW Act. On July 20, 2006, a new law implementing the framework decision came into force Background: The European Arrest Warrant The EAW, established by a framework decision, is meant to herald a new era of judicial cooperation in criminal matters within the European Union. 6 It came into being following the events of September 11, 2001, and was designed to be an effective tool in the fight against terrorism. Its main purpose is to abolish the formal extradition procedure among EU member states by replacing it with a system of surrender between judicial authorities in order to simplify and speed up extradition procedures. In principle, an arrest warrant is sent directly from one judicial authority to another outside of diplomatic channels. Any political aspects that might affect the transfer of suspected criminals are, in this way, to be removed. The EAW is based on the principle of mutual recognition, which obligates each member state to execute a public act taken in another member state. 7 There are only limited grounds on which execution of this new type of arrest 5 Gesetz zur Umsetzung des Rahmenbeschlusses über den Europäischen Haftbefehl und die Übergabeverfahren zwixchen den Mitgliedstaaten der Europäischen Union [Law for the Implementation of the Framework Decision on the European Arrest Warrant and the Surrender Procedures between Member States of the European Union], July 25, 2006, BGBl. I at 1721 (F.R.G.); for further analysis, see Thomas Hackner, Wolfgang Schomburg & Otto Lagodny, Das 2. Europäische Haftbefehlsgesetz [The Second European Arrest Warrant Act ], 25 NEUE ZEITSCHRIFT FÜR STRAFRECHT [NStZ], (2006). 6 See supra note 3; the framework decision is an EU instrument approximating the laws and regulations of the member states regarding police and judicial cooperation in criminal matters the so-called third pillar. A framework decision is binding on member states as to the result to be achieved but leaves the choice of form and methods to the national authorities. See K OEN LENAERTS & PIET VAN NUFFEL, CONSTITUTIONAL LAW OF THE EUROPEAN UNION 806 (2d ed., Sweet & Maxwell 2005). 7 See Framework Decision, at recital 6; see, generally, Steve Peers, Mutual Recognition and Criminal Law in the European Union: Has the Council Got it Wrong?, 41 COMMON MKT. L. REV. 5 (2004).

3 Nohlen Germany: The European Arrest Warrant 155 warrant must be or can be refused. 8 In the light of these considerations, the EAW represents a legal mechanism that shows a high level of confidence among EU member states. It is noteworthy that an arrest warrant can also be issued for acts committed by a national of the requested state. 9 The framework decision does not allow a member state to refuse to surrender its own nationals merely because of their nationality. The surrender of home-state nationals, though, creates specific problems regarding some of the member states constitutions, among them the German Basic Law. 10 Nonetheless, Germany complied with its third-pillar obligation police and judicial cooperation in criminal matters by implementing the framework decision through the EAW Act on July 21, The respective provisions became part of the German IRG. 2. Events leading to the judgment On September 16, 2004, the Central Court of Investigation in Criminal Matters in Madrid issued an arrest warrant against Mr. Darkazanli, thereby requesting the surrender of the German-Syrian national. In the opinion of the Spanish investigative authorities, Mr. Darkazanli was a key figure in the European al-qaeda network, and his alleged acts could constitute the crime punishable under Spanish criminal law concerning membership in a terrorist organization. German authorities then put Mr. Darkazanli under arrest pending extradition. On November 23, 2004, the Higher Regional Court in Hamburg declared his surrender to Spain permissible. One day later, the judicial authority of Hamburg granted extradition. It was only because the Constitutional Court granted the temporary injunction on November 24, 2004, that the Iberia airplane flew to Madrid without Mr. Darkazanli. 11 The Court ordered suspension of the surrender for a maximum of six months, which was later renewed. 3. The judgment The Court held that the EAW act was unconstitutional as the legal basis for granting extradition because it was not in conformity with articles 16.2 and 8 See Framework Decision, at arts. 3, 4. 9 For a number of offenses enumerated in article 2.2 of the framework decision it is not even necessary that these acts be punishable in the requested member state (no requirement of double criminality ). The act must merely be punishable in the requesting state by a custodial sentence or a detention order for a maximum period of at least three years. 10 For a comprehensive overview, see Michael Plachta, (Non-)Extradition of Nationals: A Never Ending Story?, 13 EMORY INT L L. REV. 77 (1999). 11 Bundesverfassungsgericht [BverfGE] [Federal Constitutional Court] Nov. 24, 2004, Bundesverfassungsgericht [BvR] 2236/04 (F.R.G.), reprinted in 31 EUROPÄISCHE GRUNDRECHTEZEITSCHRIFT (EuGRZ) 667 (2004).

4 156 I CON January 2008 Vol. 6: of the Basic Law, which respectively guarantee the freedom from extradition for German nationals and recourse to a court. The grant of extradition itself was reversed. The Court understood the freedom from extradition, as enshrined in the first sentence of article 16.2, as a liberty that guarantees German citizens special association with the legal system that they have established. Freedom from extradition ensures that German nationals are not removed against their will from the purview of the legal system with which they are familiar. Citizens are supposed to be protected from the insecurity of being sentenced under a legal system that is unknown to them and in circumstances that are inscrutable to them. 12 Yet, while the first sentence of article 16.2 protects German citizens from extradition, this protection can be restricted by schema for extradition to an EU member state or an international court, as long as the rule of law is upheld and the principle of proportionality is respected. 13 The Court found that the EAW Act did not pass the proportionality test: the German legislature had not exhausted the discretionary latitude afforded to member states by the framework decision in a manner commensurate with the fundamental rights enshrined in the Basic Law. 14 Consequently, the legislature encroached disproportionately on the freedom from extradition. The Court s ruling is therefore based on two propositions: first, that the framework decision leaves a discretionary margin for implementation and, second, that the German legislature had not exhausted this margin. The Court saw particular latitude in connection with the German incorporation of article 4 of the framework decision. In that provision, the framework decision provides that there is no obligation for a judicial authority to execute an arrest warrant where the warrant relates to acts that have been committed, in whole or in part, in the territory of the executing member state. 15 The framework decision expressly states that in such cases the executing judicial authority may refuse to execute the arrest warrant. 16 The Court interpreted this provision to mean that restricting extradition by national law is permissible Europäischer Haftbefehl, supra note 2, at para Until 2000, the extradition of a German national was unconditionally guaranteed. The amendment of the Basic Law through sentence two of article 16.2 (BGBl. I at 1633, 2000) did not establish unconstitutional constitutional law, as the Court rightly pointed out; see Nicolas Nohlen, Germany: The Electronic Eavesdropping Case, 3 INT L J. CONST. L. (I CON) 680, (2005) (explaining the doctrine of unconstitutional constitutional law). 14 Europäischer Haftbefehl, supra note 2, at paras. 81 and Framework Decision, at art. 4.7(a). 16 Another example of a permissible refusal to execute a European arrest warrant would be a case where the subject of the warrant is already being prosecuted in the executing member state for the same act upon which the European Arrest Warrant is based. See Framework Decision, at art Europäischer Haftbefehl, supra note 2, at para. 84.

5 Nohlen Germany: The European Arrest Warrant 157 With regard to the German implementation, the Court found that the German legislature had not made use of the discretionary margin provided for in article 4.7(a) of the framework decision. The implementing act did not show any restriction on the extradition of German nationals who allegedly committed crimes, in whole or in part, on German territory. However, such a restriction in the implementing law itself would be necessary in light of the fundamental right guaranteed in article 16.2 of the Basic Law. The Court argued, in this respect, that the prosecuted person s confidence in his or her own legal system must be protected, especially where acts with a significant domestic connection ( maßgeblicher Inlandsbezug ) are concerned. In principle, German investigative authorities were to look into such acts domestically. However, since the implementing act did not prohibit the surrender of German nationals in the case of acts with a significant domestic connection, it encroached on article 16.2 of the Basic Law in a disproportionate manner. Regarding acts with a significant connection to a foreign state, the Court held that the surrender of German nationals raised no constitutional concerns. 18 Whoever acts within the jurisdiction of another legal system must be aware of the possibility of incurring liability there as well. 19 Furthermore, the Court also held that the EAW act infringed on the guarantee of recourse to a court enshrined in article 19.4 of the Basic Law since it did not establish effective avenues for the individual concerned to challenge the grant of extradition to another EU member state Assessment of the judgment The judgment of the German Constitutional Court concerning the EAW Act was eagerly anticipated. Both the scholarly world and the public awaited the Court s views on issues such as the competences conferred by member states on the European Union; the so-called democratic deficit within the third pillar (police and judicial cooperation in criminal matters); or the possible limits of European integration. 21 In the European law context, the verdict was expected 18 Europäischer Haftbefehl, supra note 2, at paras The Senate differentiated among three categories of acts: (1) acts with a significant domestic connection; (2) acts with a close connection to a foreign state; and (3) acts that are linked to both Germany and another state. Regarding the last category, the Senate found that a balancing test has to be conducted in each case. 19 Europäischer Haftbefehl, supra note 2, at para Europäischer Haftbefehl, supra note 2, at paras Since the reasoning of the Court in this respect has been widely accepted, it will not be dealt with in further detail. See Helmut Satzger & Tobias Pohl, The German Constitutional Court and the European Arrest Warrant, 4 J. INT L CRIM. JUST. 686, 694 n.32 (2006). 21 See, e.g., Bernd Schünemann, Europäischer Haftbefehl und EU-Verfassungsentwurf auf schiefer Ebene Die Schranken des Grundgesetzes [ European Arrest Warrant and EU Draft Constitution on a Slippery Slope ], 36 ZEITSCHRIFT FÜR RECHTSPOLITK (2003) (expecting a Solange III type judgment by the Court); Reinhard Müller, Wichtiger als Maastricht [More Important than Maastricht ], F RANKFURTER ALLGEMEINE ZEITUNG (FAZ), Feb. 24, 2005, at 1.

6 158 I CON January 2008 Vol. 6: 153 to have an importance comparable to that of the Court s landmark rulings in Solange I, Solange II, and Maastricht. 22 The Court itself contributed to those expectations, allocating two full days for the oral hearing, which it does very rarely, and referring to harmonization pressure and iterative denationalization in its prospectus for the hearing. 23 Consequently given these expectations the judgment has been described as rather disappointing. 24 Certainly, it seems clear that the Court has not handed down the landmark ruling on the European Union that some had anticipated. Could the judgment be called Union-friendly? At first glance, this is not certain. On the one hand, the Court did not challenge the framework decision itself. It accepted the binding nature of framework decisions as EU secondary measures harmonizing the law of the member states within the third pillar of the Union. 25 The Court found that the implementing act was unconstitutional only by virtue of the German legislature s failure to exhaust the margins afforded it by the framework decision. Thus, the Court indicated that the framework itself raised no problems as regards the Basic Law. 26 On the other hand, the Court declared the EAW Act, implementing the framework decision, to be void and Germany to be in breach of EU law. 27 Such a result raises serious concerns, especially in connection with the recent cases of the European Court of Justice (ECJ). In Pupino, a Grand Chamber judgment, 22 Solange I, 37 BVerfGE 271 (1974) (German courts would continue to recognize the supremacy of the fundamental rights in German law, as long as the European Community did not have codified fundamental rights); Solange II, 73 BVerfGE 339 (1986) (German courts need not review EC legislation, as long as it guarantees the same fundamental rights as the German constitution); Brunner Case (Maastricht), 89 BVerfGE, 155 (1993) (European law in practice acceptable insofar as the practice was foreseeable when the law had been approved by the German parliament). 23 See German News Agency, DPA-Report, DIE ZEIT (Apr. 6, 2005), available at de/text/2005/15/euhaftbefehl. 24 See Christian Tomuschat, Inconsistencies The German Federal Constitutional Court on the European Arrest Warrant, 2 EUR. CONST. L. 209 (2006). 25 However, the Court left open the question of supremacy; see Johannes Masing, Vorrang des Europarechts bei umsetzungsgebundenen Rechtsakten [Supremacy of European Law as Regards Measures without Margins for Implementation ], 59 NEUE JURISTISCHE WOCHENSCHRIFT (NJW) (2006). 26 However, there is also much in the judgment that may undermine the Union s general approach within the third pillar as expressed in the framework decision, especially the principle of mutual trust. See Jan Komárek, European Constitutionalism and the European Arrest Warrant: Contrapunctual Principles in Disharmony 15 (Jean Monnet Working Paper No. 10/05), available at ; Tonio Gas, Die Verfassungswidrigkeit des Europäischen Haftbefehlsgesetzes [The Constitutionality of the European Arrest Warrant Act ], 41 EUROPARECHT (2006). 27 There simply no longer was any implementing act, although the time for implementation of the framework decision had expired on December 31, See Framework Decision, supra note 4, at art. 34(1). The new law implementing the framework decision came into force on July 20, See supra note 5.

7 Nohlen Germany: The European Arrest Warrant 159 the ECJ held that the Community principle of loyal cooperation among member states and Community institutions, as enshrined in article 10 of the EC treaty, also extends to Union law. 28 The ECJ held, in particular, that it would be difficult for an ever closer Union, as envisaged in article 1.2 of the EU treaty, to carry out its tasks effectively if the principle of loyal cooperation were not also binding in the third pillar. 29 As for the duty of loyalty, the ECJ specified that member states are required to take all appropriate measures, whether general or particular, to ensure fulfillment of their obligations under European Union law. 30 Thus, national authorities in particular, national courts are obliged to interpret national law in conformity with framework decisions adopted under the third pillar. 31 In the light of these considerations, one may ask whether the Court might not have reached a different result on the constitutionality of the EAW act. 32 As noted above, the main criticism by the Court was that the German legislature had not prohibited the surrender of German nationals for prosecution of crimes committed in Germany, which the framework decision would have permitted according to its article 4.7(a). It is true that the EAW Act did not explicitly prohibit German judicial authorities from surrendering a German national in such cases. Yet, the Court did not take into account sections 83(b)(1) and (2) of the IRG as amended by the EAW Act. These provisions left it within the discretion of the German judicial authorities to refuse to surrender someone when either (a) the person concerned is already being prosecuted in Germany for the same acts as those cited in the European warrant; or (b) the competent authorities have decided to refrain or desist from prosecuting those acts. These IRG provisions may not protect German nationals sufficiently from extradition for crimes committed on German territory. However, when trying to assess the degree of protection given by sections 83(b)(1) and (2) of the IRG, two points need to be taken into account: first, the principle of legality in German law, according to which the competent judicial authorities are obliged 28 See Case C-105/03, Pupino, [2004] ECR I-5285, para. 42; see also Pupino, paras (Opinion of Advocate General Juliane Kokott). 29 See Pupino, para See Pupino, para. 42. For further elaboration on the Pupino ruling, see Maria Fletcher, Extending Indirect Effect to the Third Pillar, 30 EUR. L. REV. 862 (2005); Christian Hillgruber, Unionsrecht und nationals Recht der Fall Pupino [Union Law and National Law The Pupino Case ], 60 JURISTENZEITUNG 841 (2005). 31 Pupino, para Regarding Germany s obligations under EU law, the goal of such an interpretation would have had to be maintaining the implementing law ( interpretation favor legis ), either through an interpretation of the Constitution itself, in conformity with European law, or through an interpretation of the implementing law, in conformity with the Constitution. See Alicia Hinarejos Parga, Note, Bundesverfassungsgericht, Decision of 18 July 2005 on the German European Arrest Warrant Law, 43 C OMMON MKT L. REV. 583, 590 (2006).

8 160 I CON January 2008 Vol. 6: 153 to prosecute any criminal act; second, the fact that the judicial authorities are also bound by article 16.2 of the Basic Law and the principle of proportionality. Applying these two requirements to the crucial constellation of circumstances in which a German national has committed a crime, in whole or in part, on German territory, one may make a couple of assumptions. First, in almost all cases, it is reasonable to think that the German judicial authorities will start criminal proceedings against the person concerned and, second, that the authorities will not execute a possible arrest warrant, since article 16.2 of the Basic Law and the principle of proportionality prohibit them from doing so. Under these assumptions, the provisions of the EAW Act suggest that, although there is no explicit prohibition, a German national who has committed crimes on German territory will almost never be surrendered to another EU member state. 33 Thus, it would have been possible to interpret the implementing act in a way that would have been in line with freedom from extradition as established by article 16.2 of the Basic Law. Such interpretation would, for its part, have been in conformity with Germany s duty of loyal cooperation under the third pillar. 34 However, the Court did not discuss whether or not it was obliged under European Union law to pursue the objectives set forth by the framework decision as far as possible. Furthermore, if we focus just on the legal consequences of the judgment, it seems unacceptable to declare a national law implementing a framework decision in its entirety null and void when compliance with constitutional demands could have been achieved otherwise. Even if one accepted that the EAW Act was, in part, unconstitutional, the Court was not absolutely constrained to nullify the entire act. It would have been sufficient to establish in certain cases, which the Court could identify as contrary to the Basic Law that the act was inapplicable. This would have meant that only extraditions in just these cases were inadmissible until the entry into force of a new law. 35 Another possibility would have been the partial annulment of the EAW law. Instead, because of the nullification of the complete act, extradition based on a European arrest warrant was not possible. This was now the case, even if there were clearly no constitutional problems at stake, as when, for instance, a warrant was issued for a non-german national or when a crime without a significant domestic connection was at issue. 36 The conclusion reached by the Court is 33 See Tomuschat, supra note 24, at 222. Tomuschat, therefore, describes such situations as rather theoretical. See also Simone Mölders, European Arrest Warrant Act is Void The Decision of the German Federal Constitutional Court of 18 July 2005, 7 GERMAN L. J. 45, 53 (2005). 34 See supra note See supra note 4, at 201 (Gerhardt, J., dissenting). See also Tomuschat, supra note 24, at See supra note 4, Framework Decision (Lübbe-Wolf, J., dissenting). For the same criticism, see Klaus Michael Böhm, Das Europäische Haftbefehlsgesetz und seine rechtsstaatlichen Mängel, 56 NEUE JURISTISCHE WOCHENSCHRIFT (NJW) 2588 (2003); Mölders, supra note 33, at 57.

9 Nohlen Germany: The European Arrest Warrant 161 even more striking given that the acts allegedly committed by the complainant in the present case did not seem to have any significant domestic connection, which suggests that his surrender would probably not have raised constitutional concerns in the first place. 37 The legal consequences occasioned by the Court s judgment may be even more harshly criticized since the Polish Constitutional Court had shown, two months earlier, how to deal with the Union requirement of mutual loyalty. 38 Although it also found the Polish law implementing the framework decision unconstitutional, again because of the Polish Constitution s ban on extraditing Polish nationals, it came to a more Union-friendly conclusion. In the light of loyal cooperation among member states and the Union, the implementing law was not nullified immediately but remained in force temporarily. Thus, Polish courts will still have to apply the annulled provisions while the legislature will be obliged to initiate, immediately, the enactment of a new law implementing the framework decision. The Court did not use the case to elucidate its general views, for instance, on the democratic deficit within the third pillar or the limitations of European integration. The complainant s claim of a democratic deficit was dealt with rather laconically. The Court merely stated, unfortunately, that the requirements of the principle of democracy were met within the third pillar, because the German legislature can, if necessary, deny the implementation of framework decisions, thereby emphasizing the public international law character of Union law as opposed to Community law. 39 Finally, the Court did not address the recent case law of the ECJ dealing with the principle of loyal cooperation in Union law and the duty of interpretation in conformity within the third pillar. 40 Thus, the Court s judgment left some of the crucial questions of European Union law open. It seems that the Court did not find the EAW to be the right vehicle for a fundamental statement on European integration within the third pillar. 37 See Framework Decision, at 184 (Lübbe-Wolf, J., dissenting). See also Tomuschat, supra note 24, at Judgment of April 27, 2005 (unofficial translation), reprinted in C OMMON MKT. L. REP (2006). See also Komárek, supra note 26, at Europäischer Haftbefehl, supra note 2, at para. 82. For criticism of this view, see Gas, supra note 26, See Satzger & Pohl, supra note 20, at 695 (calling such omission an eloquent silence ).