Criminal Defense

European Arrest Warrant: Extradition and Art. 4 of the Charter of Fundamental Rights of the EU

Article 4 of the Charter of Fundamental Rights of the EU imposes an obligation on a court dealing with an extradition request to investigate ex officio in two steps whether there is a concrete risk that the person to be transferred will be exposed to the risk of inhuman or degrading treatment after the transfer (see BVerfG, Order of 27.01.2022 – 2 BvR 1214/21; BVerfG, Order of 14.01.2021 – 2 BvR 1285/20).

In principle, it can be assumed that such a danger does not exist in the European Union. Within this legal area, it may in principle be trusted that other states will comply with the necessary conditions, because each Member State of the EU shares with all other Member States a set of common values on which the Union is founded (cf. Art. 2 TEU). There is thus a fundamental, mutual trust between the Member States, so that the court hearing the extradition request must in principle assume that the requesting Member State will comply with the rights of the Charter (BVerfG, 2 BvR 1845/18).

However, something else applies if and only if the trust is exceptionally shaken by concrete indications that there is a real risk of inhuman or degrading treatment of prisoners in the requesting state (ECJ, C-128/18). In such a case, the court dealing with the extradition request is under an obligation to make a concrete and precise assessment of whether, in the specific circumstances, there are serious grounds, confirmed by facts, for believing that, after his or her surrender to the requesting state, the prosecuted person will be exposed to a real risk of inhuman or degrading treatment within the meaning of Art. 4 CFR and Art. 3 ECHR due to the conditions of his or her detention (BVerfG, 2 BvR 1214/21 and 2 BvR 156/21).

Since an exception is made in this respect to the principle of trust essential to the system of the European arrest warrant, the requirements for the existence of concrete indications in the sense mentioned must not be set too low – a violation of guarantees similar to fundamental rights and the rule of law can, however, lead to an obstacle to extradition only to a limited extent to a violation of its core area because of the fundamental obligation of the Federal Republic of Germany to extradite and to respect foreign legal systems, as the Higher Regional Court of Hamm summarizes:

Such a violation would exist if the extradition and acts on which it is based would violate the minimum standard binding under international law pursuant to Art. 25 GG as well as indispensable constitutional principles of public order (cf. OLG Hamm, decision of 10.09.2013, – 2 Aus 95/11 – juris). Thus, an extradition is inadmissible if it contradicts fundamental principles of the German legal system or the minimum standard in the field of human rights that is binding under international law (cf. BVerfG, Order of March 31, 1987 – 2 BvM 2/86 – BVerfGE 75, 1-34, para. 42, juris; OLG Karlsruhe, decision of 14.02.2005 – 1 AK 23/04 – Rn. 12, juris, NStZ 2005, 351; OLG Düsseldorf, decision of 19.09.1989 – 4 Ausl (A) 231/89 – 59/89 III -, juris, NJW 1990, 1429).

This would be the case if the requested state, by providing mutual legal assistance, would contribute to the extradited person being subjected to torture or inhuman or degrading treatment or punishment. These minimum requirements have become an integral part of the protection of human rights under international law (see BVerfG, Sustaining Chamber Decision of April 8, 2004 – 2 BvR 253/04 – para. 18, juris).

Due to the standards of protection of fundamental rights guaranteed in Union law and in particular with regard to Art. 4 of the EU Charter of Fundamental Rights (see ECJ, judgments of 26.02.2013 – C-399/11 -, “Melloni”, and of 05.04.2016 – C-404/15 – and – C-659/15 PPU -, “Aranyosi” and “Căldăraru”, both juris), the Senate is obliged to assess the existence of this danger, because the execution of a European Arrest Warrant must not lead to inhuman or degrading treatment of the prosecuted person. Art. 3 ECHR imposes a positive obligation on the authorities of the requested Member State to ensure that, in the event of extradition, the prosecuted person is accommodated in the requesting Member State in conditions which ensure respect for human dignity and that he or she is not subjected to any burden or incumbrance the intensity of which exceeds the degree of suffering inevitably inherent in the deprivation of liberty.

The health and well-being of the prosecuted person must be adequately ensured in the requesting Member State, even in detention (see ECtHR, Judgment of 08.01.2013 – 43517/09, 46882/09, 55400/09, 57875/09, 61535/09, 35315/10 and 37818/10 -, “Torreggiani u. a./Italy”, juris; ECJ, judgment of 05.04.2016 – C-404/15 – and – C-659/15 PPU -, “Aranyosi” and “Căldăraru”, juris; ECJ, judgment of 25.07.2018 – C-220/18 PPU -, NJW 2018, 3161, beck-online).

The question of whether there are “exceptional circumstances” preventing the transfer of the person concerned to the requesting State must be answered by an examination in two steps. In the first step, which concerns the general detention situation, the court dealing with the extradition request is obliged to examine, on the basis of objective, reliable, accurate and duly updated information on the conditions of detention in the detention facilities of the requesting state, whether there are concrete indications that there is a real risk of inhuman or degrading treatment of detainees in that member state (BVerfG, Order of 14.01.2021 – 2 BvR 1285/20).

If such a general risk is affirmed, it must be examined in a second step, related to the situation of the person concerned, whether in the concrete circumstances there are serious grounds, confirmed by facts, for the assumption that the requested person, following his or her surrender to the requesting state, will be exposed there to a real risk of inhuman or degrading treatment within the meaning of Art. 4 GRCh and 3 ECHR (BVerfG, Order of 14.01.2021 – 2 BvR 1285/20).

In order to be covered by Article 3 of the ECHR, ill-treatment must reach a minimum level of severity, for which all the circumstances of the case, such as the duration of the treatment, its physical and psychological effects and, in some cases, the sex, age and state of health of the person concerned, are significant. The court dealing with the extradition must evaluate these circumstances in an overall assessment (BVerfG, decision of 14.01.2021 – 2 BvR 1285/20).

Oberlandesgericht Hamm, 2 Ausl. 202 und 203/21
German Lawyer at Law Firm Ferner Alsdorf
I am a specialist lawyer for criminal law + specialist lawyer for IT law and dedicate myself professionally entirely to criminal defence and IT law, especially software law. Before becoming a lawyer, I was a software developer. I am an author in a renowned commentary on the German Code of Criminal Procedure (StPO) as well as in professional journals.

Our law firm specialises in criminal defence, white-collar crime and IT law / technology law. Note our activity in digital evidence in IT security and software law.
German Lawyer Jens Ferner (Criminal Defense & IT-Law)