In a landmark decision, the German Federal Constitutional Court ruled on 4.12.2019 that the Higher Regional Court’s decision to declare an extradition as admissible without sufficiently clarifying beforehand the risk of political persecution in the requesting state constitutes a violation of the right to effective judicial protection (case no. 2 BvR 1832/19). The case is important as it shows that extradition to Turkey is – currently - not only problematic when the extradition request concerns a clearly political offence such as membership of a terrorist organisation, support of the Gülen movement etc., but also for prima facie “ordinary” offences, even very serious offences such as homicide (or, as it would qualify under German law in the case at hand: bodily harm resulting in death), when further submissions of the requested person justify the risk that a political persecution may be behind the seemingly non-political request.
The ruling is of particular interest as
- It was not even proven that it would be a political offence (the requested person was requested for a homicide offence, but submitted that he had been arrested several times and that the Turkish government believed him to be member of a left-wing political party – DHKP-C),
- the Federal Constitutional Court found that the Court could not simply rely on Turkey’s assurances that human rights would be complied with, without first autonomously checking the situation in Turkey in order to assess whether the assurances given could actually be kept in practice, and
- The Constitutional Court even stated, in an obiter dictum, that full denial of access to the case file might amount to a violation of Art. 6 ECHR and in consequence be an obstacle to extradition.
The facts of the case
The requested person (RP) was a Turkish citizen with Kurdish ethnical background and Alevite beliefs. He was arrested in Germany based on an Interpol red notice from Turkey, for a homicide offence. When he applied for asylum, he was arrested by the police based on the red notice, and submitted that he had not committed any crimes, but was member of the Turkish party DHKP-C and assumed that Turkey wanted to damage him based on this political background. On the same day he was brought before a judge of the District Court of Bochum, where he again submitted to have nothing to do with the alleged offence. He assumed that the case was a constructed on against him, as he was politically persecuted in Turkey and had been arrested on several occasions without reasons and been tortured. On this basis, the RP opposed his extradition.
The District Court ordered his provisional arrest, and the Higher Regional Court then ordered preliminary extradition detention based on his “scarce and sweeping” statements.
Turkey then sent the formal extradition request, based on which the RP was alleged of having participated in a brawl in front of the Bahcelievler Özel-Vital-hospital on 5.7.2017 at 3 am. Before, he had been treated in that hospital for a cut in his hand. During the quarrel, RP had shot a person with a firearm into his left thigh, and that person had died on 18.7.2017 as a cause of complications. After the shot the RP was alleged to have fled the place with a vehicle of which the licence plate was known. The allegations were, according to the extradition request, supported by a statement of a witness and partially CCTV recordings. The Turkish authorities qualified the described acts as “intentional murder”, which carried a life sentence. The extradition request further specified that the RP was not sought for a political, military or financial offence. He had “all legal rights” which were provided for by Turkish law and the international treaties Turkey had ratified. He could further lodge an individual complaint with the ECHR. Further, he was “only tried against for the offence described in the extradition request”. In case he had committed another offence before the date of the extradition, based on the specialty rule the consent would be requested. If the competent German authorities would not consent, he would not be “tried for a later occurred offence”.
The General Public Prosecutor requested information from the German Federal Office for Justice who confirmed that there were no findings that the extradition request was related to the RP’s membership with the DHKP-C.
The RP opposed his extradition. Through his lawyer, he submitted that he was not a member of DHKP-C, but that his Turkish lawyers had been denied access to the investigation files of the offence in question, including the CCTV recordings, as these were classified as secret. He feared that the offence was foisted on him. This had already happened to him in 2016, when he had been detained by special units in his car and falsely accused of having transported a Kalashnikov and ammunition. Subsequently he had suffered maltreatment and torture at the police station. He had been detained on 14.9.2016 on remand and released on the day of his judgment, 13.4.2017. He had been unfoundedly convicted for illegal possession of arms to a prison sentence of 4 years and 2 months. He submitted a copy of the judgment in that case, which also stipulated that he had been active in DHKP-C until 2006. The prison sentence had been suspended under probation, combined with reporting obligations. He had first complied with the reporting obligations but then, upon advice by his lawyers, absconded. In case of his extradition, he feared that this prison sentence would then be enforced in Turkey. Further, he risked to be tortured and suffer inhumane treatment, as he had already experienced during previous detentions in Turkey. The Turkish penitentiary system suffered of systemic deficits, amongst others overcrowded prisons, deficit access to drinking water, badly heated rooms and lacking access to fresh air and light. Medical care was also scarce. Various sources reported of abuse, degrading treatment and torture. Based on his political activities, the RP had already been arrested several times. He was considered as political opponent in Turkey, even though the offence in the extradition request did not show any political connection. In 2008, for instance, he had been arrested for the first time on the street and been mistreated and tortured until presented to a judge. As a cause of this, he suffered of significant concentration disorders. He had been alleged of having threatened people as a member of DHKP-C. He had been in remand detention for 2 years until 9 December 2010. On 30.12.2008, he had been indicted. The investigations were still on-going. He submitted the indictment as attachment to his submission. He further submitted various reports on the current situation in Turkey.
When the German authorities received the further extradition documents from Turkey, the RP submitted, amongst other things, that he had no cut injury in his hand, as claimed by the Turkish prosecution authorities, and showed the German court both hands. The Court noted that no injuries or scars were seen on the RP’s forearms and hands.
That notwithstanding, the Higher Regional Court upheld the RP’s detention with a view to his extradition. The translation of the submitted documents, in their view, did not support the RP’s allegations that he was politically persecuted. The judgment of 2016 substantially discussed the arguments of the defence, and with regards to the indictment of 2008, one had to assume that this case had not led to a conviction. In any event it was unclear whether it was still on-going. At present, the assumption of a political persecution was not as unequivocal as to declare the extradition as clearly inadmissible. It depended on assurances and further information from the asylum proceedings.
The Foreign Office then requested assurances from Turkey. Turkey assured that the RP would be held in a prison which would conform with Art. 3 ECHR and European Prison Rules. Further, he would not be subjected to torture or inhumane treatment. The German embassy would be granted the opportunity to visit him in prison. Further, in the criminal proceedings the standards of Art. 5 and 6 ECHR would be observed. While Turkey had not guaranteed that the German embassy could visit him “at any time”, such assurance would not be necessary because visits would anyways usually be announced beforehand. According to the embassy’s experience, the right to visit was generally granted in practice.
In the course of the asylum proceedings, the RP made further statements and submitted that he was considered as political opponent by the Turkish government.
On 25.07.2019 the General Public Prosecutor of Hamm requested to declare the extradition as admissible. The RP opposed this request and submitted that the fact that his lawyer in Turkey had been denied access to his case files constituted a violation of Art. 6 ECHR and a violation of the rule of law. The assurances from Turkey were further contradicted by the documented practice of torture in Turkish prisons. This practice had even been upheld in publicly known cases, so that it could not be expected that the RP would be treated any better. Further, it was unclear in which Turkish prison he would be held in case of his extradition. As a consequence, it could not be assessed whether this prison complied with the minimum standards. He made further specific submissions in relation to the cases from 2008 and 2017, both of which had a political background, and were still pending against him.
The Higher Regional Court declared the extradition of the RP as admissible by decision of 10.09.2019. It found that the extradition request was not motivated by a political offence, as the Turkish authorities had explicitly assured that the extradition offence was not a political offence and that the principle of speciality would be observed. With regards to prison conditions, Turkey had assured that Art. 3 and European Prison Rules would be observed. There were no doubts as to their reliability. It was not necessary to specify the particular prison in which the RP would be held, and to describe the prison conditions therein. Art. 6 ECHR also would not impede extradition. This would only be a ground for refusal in case of an evident unfair trial. In light of the assurances with regards to Arts. 5 and 6, ECHR, this was not evident. The limitation of his access to the file based on jeopardizing the investigations did not constitute a ground for refusal. In light of Turkey’s assurances one had to assume that Turkey would comply with the requirements of Art. 6 ECHR. With regards to the life sentence, one had to assume that Turkish law provided for the possibility of early release.
The RP lodged a constitutional complaint against this decision and applied for interim release. He held that his right to effective judicial protection, guaranteed under Art. 19(4) of the German Constitution, the Basic Law, and his right to physical integrity (Art. 2(2), Basic Law) were violated.
The Constitutional Court allowed the interim release on 25.10.2019 and thereby temporarily impeded extradition to Turkey. On 4 December 2019, it established that the RP’s right to effective judicial protection was violated.
The Federal Constitutional Court’s Ruling
The Constitutional Court found the right to effective judicial protection to be violated as the Higher Regional Court had failed to sufficiently clarify whether there was a risk for the RP to be politically persecuted in the requesting state.
The purpose of the judicial admissibility in formal extradition proceedings was preventive judicial protection of the concerned person. If an extradition was carried out despite the risk that the concerned person might be politically persecuted in the requesting state, this violated the requested person’s right to physical integrity under Art. 2(2), Basic Law. Even if in the case at hand the concerned person was not entitled to asylum pursuant to Art. 16a(1), Basic Law, the underlying rationale of this norm, i.e. to protect from political persecution in the target state, had to be taken into account.
Insofar as there were indications for political persecution, the competent extradition authorities were obliged to check autonomously whether the concerned person risked political persecution in case of his extradition. In case of such indications for political persecution, the courts competent to decide on the admissibility of the extradition had to carry out the investigations that were possible for them to clarify the claimed risk and assess the facts autonomously. If this assessment resulted in serious reasons to believe that a risk of political persecution existed, as a rule, they had to declare the extradition as inadmissible.
The Constitutional Court further held that the principle of mutual trust did not only apply between the Member States of the European Union, but that it was also a rule of international extradition procedures in general. This principle of mutual trust could be upheld as long as it was not weakened by conflicting facts. The latter was the case if there were factual indications that in case of an extradition indispensable constitutional principles or binding international minimum standards would be infringed, e.g. if there were factual indications that the requested person risked political persecution in the requesting state or if there were significant systemic deficiencies in the prison conditions of the requesting state.
Under well-established case law of the Federal Constitutional Court, international binding assurances were able to remove concerns against the admissibility.
However, an assurance did not release the competent court from hits duty to make an autonomous risk assessment, in order to be able to assess the situation in the requesting state and thereby lay the foundations to be able to judge the reliability of the assurance. The Constitutional Court stressed that this requirement followed also from the case law of the ECHR, namely Othman v. UK. If it turned out that the factual circumstances in the requesting state significantly deviated from the assured conditions, it had to be questioned whether the assurances could actually be complied with in practice and whether the assurance was then reliable.
In light of this, the decision of the Higher Regional Court of Hamm could not be upheld. The Court had failed to clarify the risk of political persecution autonomously. It had not discussed the RP’s detailed submissions and official documents which substantiated that the RP was considered member of an opposition group.
Amongst others, the Hamm Court failed to see that the question whether the underlying criminal investigations of 2008 were still on-going was a question that required clarification. This was in particular true as it was not established beyond doubt that these investigations would be impeded by the rule of specialty.
The Hamm Court was not released from its duty to autonomously assess the risk of political persecution by referring to the assurances given by Turkey. In order to assess the reliability of these assurances, it would have needed to first clarify the factual circumstances of the case in question.
Furthermore, the Hamm Court’s assessment regarding the prison conditions did not comply with the requirements under Art. 19(4) (effective judicial protection) of the Basic Law either. Similarly, the Court trusted Turkey’s assurances without taking into consideration the significant systemic deficiencies in Turkish prisons submitted by the RP, and without initially assessing the situation in Turkey based on an autonomous risk assessment.
The Federal Constitutional Court thus established a violation of Art. 19(4) of the Basic Law, and, consequently, deliberately left the following two questions open:
- whether an extradition could take place at all at the present situation, without naming the specific prison in which the requested person would be detained; and
- whether in case of an extradition the minimum standards for criminal proceedings would be complied with.
Insofar, it is remarkable that the Constitutional Court agreed with the Higher Regional Court’s general statement that only significant deficiencies of procedural guarantees would impede extradition, but at the same time still clearly stated the complete denial of access to the case files for the defence could indeed amount to such a significant deficiency.