BVerfG, 2 BvR 221/15, 2015
- 2015
- Germany
Topics
Membership in a terrorist organisation Violent extremismLegal bases
Germany: Constitution of 1949, Basic Law for the Federal Republic of Germany (Grundgesetz für die Bundesrepublik Deutschland (GG))Courts
Federal Constitutional Court, GermanyLaws
Right to Liberty Right of asylumFacts
The complainant is a Russian national and a devout Muslim. According to him, after studying the Turkish language and the Quran in Istanbul/Turkey from September 2013, he entered Germany in May 2014. On 25 July 2014, he applied for asylum in Germany based on an alleged persecution by Russian authorities. In October 2014, he was arrested provisionally due to an Interpol arrest warrant. Later in 2014, the courts ordered him to be detained for extradition purposes. In December 2014, the Russian Attorney-Generalship formally requested the claimant to be extradited for criminal prosecution. In the request, it was alleged that the claimant had spent September to December 2013 in a Syrian militia camp in order to gain knowledge and practical skills intended for the participation in terrorist acts on the territory of the Russia. Russia had given political assurances not to persecute the complainant politically, only to prosecute the criminal offence mentioned in the extradition request. The complainant claimed that he must not be extradited for the following reasons: The allegations of having trained in a Syrian terrorist camp are false and politically motivated and the Russian Federation suspected any devout Muslim from the Caucasus who had left the country of terrorist activities and persecuted them. He would therefore face persecution for religious reasons, among others. In 2015, the Higher Regional Court of Schleswig-Holstein declared the extradition for criminal prosecution to be permissible and ordered continuation of the extradition detention.
Legal grounds
Article 1.1, Article 1.3, Article 2.1, Article 2.2 sentences 1 and 2, Article 3.3, Article 4.1 and Article 16a of the GG.
Findings
In so far as the court order permitted the complainant’s extradition, it violates his right to asylum under Article 16a of the Basic Law. The Higher Regional Court did not take into account the significance and scope of Article 16a of the Basic Law when deciding on the permissibility of extradition. Neither did it consult the asylum case file, nor did it question the complainant in this regard. Neither the challenged decision nor the file to the proceedings indicates that the court did recognise the relevance of Article 16a of the Basic Law for the case at hand at all. Even in the case of political assurances with regard to non-political prosecution, examining and assessing the asylum claim is necessary to ascertain whether those assurances might be complied with in the case at hand. With regard to the court’s order relating to extradition detention, the Federal Constitutional Court did not admit the complaint for decision. The aim of the detention, to enable both to conduct the proceedings and to enforce the extradition, allows for ordering and continuing the detention if the conditions for extradition might be met and if this can only be ascertained during the proceedings. Due to the gravity of the alleged crime and the duration of the extradition detention until then, the order continuing the extradition detention did not violate sentence 2 of Article 2.2, sentence 1 of Art. 104.1 of the Basic Law.