29 BVerfGE 183 (1970)

{Translator's Note: A meaningful translation of this case requires the definition of some terms. The German word for extradition is Auslieferung and I used the word extradition accordingly. The German word Ruecklieferung describes an extradition of a person back to country A by country B after that person was temporarily extradited by country A to country B. I translated Ruecklieferung with return-extradition. The term Ueberstellung generally means transfer or handing over of a person from one country to another.}

[Facts:

The petitioner in this case is a German citizen. He had been sentenced to six years of prison in Austria. Before he commenced to serve his six year term in Austria, he was temporarily extradited to Germany with the condition that he would be return-extradited by the German authorities to Austria. The purpose of the temporary extradition to Germany was to complete two pending criminal trials in Germany against the petitioner. He was found not guilty in both cases. The return extradition procedure was provided for by Article 22 of the German-Austrian extradition treaty (deutsch-oesterreichscher Auslieferungsvertrag, hereinafter ET).

The High Court of Appeals in Celle issued a decree on March 5, 1970 ordering the return-extradition of the petitioners. The petitioner challenged that decree but the High Court of Appeals rejected the challenge on April 3, 1970, arguing that Germany had a contractual duty to return-extradite the petitioner.

Petitioner then filed several constitutional complaints. Among other things, petitioner challenged the constitutionality of the April 3 decision of the High Court of Appeals. In particular, he claimed a violation of his basic right as guaranteed by Article 16.2. first sentence of the Basic Law.

Issue:

Is a return-extradition following a temporary extradition of a German citizen pursuant a treaty in violation of Article 16.2. first sentence of the Basic Law?

Holding by the First Senate:

No, it is not.

Discussion:

First the Federal Constitutional Court finds the constitutional complaints permissible.]

C.

The constitutional complaints are however unjustified. The challenged decisions [of the High Court of Appeals] violate neither the basic rights of petitioner from Article 16.2. first sentence, Article 2.2. second sentence, and Article 104.1. and 104.2. of the Basic Law, nor any other basic rights.

I.

1. The challenged decisions directly encroach upon the protective sphere of Article 16.2. first sentence of the Basic Law...

2. a) For the question whether a return-extradition has to be treated as an extradition within the meaning of Article 16.2. first sentence of the Basic Law and therefore is impermissible, neither the wording of the constitutional clause, nor the systemic interrelation with other norms, nor the legislative history [provide any insights].

Article 16. of the Basic Law does not include a definition of extradition and also does not describe the course of events that is to be understood as extradition. The combination with questions of citizenship and asylum in the same Article probably allows the conclusion that German citizens in their status as members of the state (staatsbuergerlicher Status) were to be protected in particular from persecution abroad; the scope of the protective norm in particular, however, can neither be derived from the interrelation [with the other parts of Article 16.] nor with the interrelation with any other basic rights norms.

The same holds for the legislative history. In the course of the debates of the Parliamentary Council (Parlamentarischer Rat) the prohibition of extradition was debated and altered several times. This discussion, however, only concerned the questions what is to be understood as foreign country, whether the prohibition shall be included at all, and whether it should be mentioned that only the extradition with the purpose of Aprosecution and punishment@ is impermissible (*).

[The court next analyzed in great detail whether legal history provides a fixed definition of the term extradition. It surveyed legal literature and precedents of the entire century. The conclusion of this lengthy part was that no fixed definition of the term extradition existed.]

3. After all this the interpretation of Article 16.2. first sentence of the Basic Law with respect to return-extradition cannot depart from a fixed legal norm [which was incorporated into the Basic Law by the founding fathers]. In contrast, [the interpretation] must commence with a comparative analysis of the two events to be interpreted, Aextradition@ and Areturn-extradition@, and then consider the meaning and purpose of the prohibition of extradition.

a) An extradition is essentially a handing over of the affected [person] to foreign authorities of criminal prosecution [with the aim] to complete criminal proceedings there or to execute a sentence. In contrast, a return-extradition is merely a necessary and dependent part of an entire course of events which is commenced by the temporary extradition. Without the temporary extradition a return-extradition cannot occur. Therefore this necessarily united course of events (zusammengehoeriger Vorgang) cannot be separated for the purpose of legal examination in a way that the constitutionality is reviewed for each part in isolation. Accordingly, to be contrasted are not extradition and return-extradition, but extradition and temporary extradition with following return-extradition; the sole concern here are cases of temporary handing over to Germany...

b) Meaning and purpose of the prohibition of extradition do not stand in the way of a return-extradition, which merely is a consequence of the temporary handing over. The prohibition of extradition rests according to its basic idea on the right of every citizen to be permitted to stay in his home-country (Heimatland), and on the duty of [the home-country] to protect in every way the citizens living within the territory. To this [duty] belongs in particular that [the state] protects [its citizens] from being compulsorily transferred to a foreign national jurisdiction and put to trial there. This principle however only applies to the Federal Republic of Germany [by the stipulation of its] constitutional law (*). In the German legal sphere, [this principle], after some old particularistic regulations, found its first legal expression [in Section 9 of Criminal Code of the Reich, then in Article 112.3. of the Weimar Constitution and Article 16.2. first sentence of the Basic Law.]

The older as well as the newer provisions themselves offer no insights as to the motive for their coming into being. Their purpose however is not to remove the affected person from a just punishment, in contrast [their purpose is] to save [the affected person]--as far as he lives within the national territory--from the insecurities of a sentencing under a legal system [unfamiliar to the accused] and under circumstances [which for the accused are] difficult to comprehend. Further-reaching conclusions, such as [the right to demand] exclusively German penal authority for criminal offenses of Germans abroad, are not being drawn from the prohibition of extradition.

In particular, it is not the point of the prohibition of extradition to render more difficult the own German criminal prosecution. However, [a prohibition of extradition would amount to such an obstruction] if a return-extradition were impermissible. Extradition is not being demanded in minor cases, in contrast [it is only being demanded] in cases of some significance. Temporary extradition with following return-extradition is only being considered when also abroad a significant sentence against the persecuted is to be expected or has already been handed down. Especially in cases of severe crime, a renunciation of temporary handing over would cause the danger that later [the crimes] would not be solvable anymore. This aspect however could not lead to a limitation of the prohibition of extradition [which] is fixed in scope. [This aspect] may however be used to interpret a constitutional term such as extradition [which] by itself cannot be sharply delimited taking into consideration the system of the constitution [and its] remaining content. For the effective solving of severe crimes in particular is an essential task of a community state based on the rule of law (rechtsstaatliches Gemeinwesen) which in a case of conflict can also be taken into consideration in the interpretation of a basic right.

In contrast, the affected [person] does not loose anything by the temporary extradition from his right to be protected by his home-country. If a return-extradition were prohibited, [the affected person] would be [subject to the foreign authorities in the same manner]. Only the maintenance of German criminal prosecution would possibly be endangered because criminal proceeding[s] in many cases could not be brought to a solution. Neither a general contractual agreement with another state, nor the request for a temporary extradition conditioned on the later return-extradition, nor the execution of this return-extradition therefore violate Article 16.2. first sentence of the Basic Law.

This result also is in accord with the precedent put forth by the petitioner (*). In that case the affected person was not already within the national jurisdiction of the Austrian state which prosecuted him. The Federal Republic of Germany was therefore not permitted to participate [in the transfer of the affected person to the Austrian] national jurisdiction. In the current case in contrast the petitioner was already validly sentenced in Austria; also before the handing over he was within Austrian national jurisdiction...

[signed by all eight Judges]

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