Hostname: page-component-78c5997874-mlc7c Total loading time: 0 Render date: 2024-11-09T16:21:02.208Z Has data issue: false hasContentIssue false

The German Federal Constitutional Court and the Extradition of Alledged Terrorists to the United States

Published online by Cambridge University Press:  06 March 2019

Extract

Core share and HTML view are not available for this content. However, as you have access to this content, a full PDF is available via the ‘Save PDF’ action button.

In January 2003, two Yemeni citizens were arrested by German police forces at the airport of Frankfurt. The arrest took place pursuant to the request of an American judge of the United States District Court for the Eastern District of New York. The action was considered to be a blow against international terrorism and should have demonstrated the functioning of the German-American cooperation in the war against this scourge. However, due to general considerations as well as the concrete circumstances of the case, the extradition of the two persons took more time than would be expected from a smoothly running cooperation. All legal remedies were exhausted in the Yemenis’ efforts to avoid extradition to the United States, and even now, an individual complaint has been brought before the European Court on Human Rights in Strasbourg. The two Yemeni citizens were finally extradited more than ten months after their arrest in November 2003.

Type
Public Law
Copyright
Copyright © 2004 by German Law Journal GbR 

References

1 BverfG, 2 BvR 1506/03 of 5.11.2003, paragraph No. (3), http://www.bverfg.de/entscheidungen/rs20031105_2bvr150603en.html [hereinafter Decision].Google Scholar

3 Terrorverdächtige Jemeniten an USA ausgeliefert, Sueddeutsche.de, Nov. 17, 2003, www.sueddeutsche.de/ausland/artikel/685/21664/.Google Scholar

4 Decision, supra note 1, para. 2.Google Scholar

5 Id. para. 4Google Scholar

9 Id. para. 3.Google Scholar

10 Compare v. 1980 (BGBl. II S. 646, 1300), and the supplementary treaty found at v. 21.10.1986 (BGBl. II S. 1086); V. 1993 (BGBl. II S. 846)Google Scholar

11 Decision, supra note 1, para. 6.Google Scholar

12 Id. para. 5Google Scholar

13 Id. para. 7Google Scholar

14 Id. para. 8Google Scholar

16 Military Order of November 13, 2001: Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, 66 Federal Register 57,831 (November 16, 2001).Google Scholar

17 Decision, supra note 1, para. 9.Google Scholar

19 Article 3 of the European Convention on Human Rights states, “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”Google Scholar

20 See supra note 10.Google Scholar

21 Decision, supra note 1, para. 12.Google Scholar

22 Article 101 paragraph 1 of the GG states, “Courts with extraordinary jurisdiction shall be inadmissible. Nobody may be deprived of the jurisdiction of his lawful judge.”Google Scholar

23 Article 100 paragraph 2 of the GG states, “Where in a court proceeding a doubt arises whether a rule of international law is an integral part of the federal law and whether such rule directly establishes rights and obligations for the individual (art. 25), the court shall seek a ruling from the Federal Constitutional Court.”Google Scholar

24 Section 2(b) of the Military Order requires that all persons who are a risk for the United States as deternined by section 2(a) of the Military Order shall be detained; a maximum detention is not established.Google Scholar

25 See Art. 2 Para. 2 GGGoogle Scholar

26 See Art. 2 Para. 1 GGGoogle Scholar

27 See Art. 2 Para. 1 and 2 GGGoogle Scholar

28 See BVerfGE 23, 288 (319); BVerfGE 75, 1 (11); BVerfGE 92, 277 (316); BVerfGE 96, 68 (77); M. Hartwig, Article 100, in Grundgesetz, Mitarbeiterkommentar, Heidelberg para. 183 (D. Umbach & T. Clemens eds., 2002).Google Scholar

29 BverfGE 15, 25 (30); BverfGE 94, 315 (328); BverfGE 100, 209 (211).Google Scholar

30 The guarantee of the legal judge is laid down in article 101 paragraph 1 GG; see also BVerfGE 18, 441 (447); BVerfGE 23, 288 (319); M. Hartwig, Article 100, in Grundgesetz, Mitarbeiterkommentar, Heidelberg para. 209 (D. Umbach & T. Clemens eds., 2002).Google Scholar

31 Decision, supra note 1, para. 38.Google Scholar

33 Id. para. 34.Google Scholar

34 Article 25 of the GG states, “The general rules of international law shall be an integral part of federal law. They shall override laws and directly establish rights and obligations for the inhabitants of the federal territory.”Google Scholar

35 Decision, supra note 1, para. 48. This line of argument is based on permanent case law; see, e.g., BVerfGE 64, 1 (21); BVerfGE 96, 68 (98).Google Scholar

36 Decision, supra note 1, para. 64.Google Scholar

37 Id. para. 66Google Scholar

38 Id. para. 73Google Scholar

39 Id. para. 74Google Scholar

40 The agreement has not yet been published, but was mentioned in Decision, supra note 1, para. 77.Google Scholar

41 Decision, supra note 1, para. 75.Google Scholar

42 Id. para. 76Google Scholar

43 BVerfGE 58, 1 (34); BVerfGE 59, 63 (89).Google Scholar

44 Hartwig, M., Article 100, in Grundgesetz, Mitarbeiterkommentar, Heidelberg para. 179 (D. Umbach & T. Clemens eds., 2002).Google Scholar

45 BVerfGE 23, 288 (316); BVerfGE 36, 342 (365).Google Scholar

46 Decision, supra note 1, para. 45.Google Scholar

47 Id.; see also BVerfGE 75, 1 (18).Google Scholar

48 See BVerfGE 58, 1 (41).Google Scholar

49 It is in this line of reasoning that the Constitutional Court requires the application of the German constitutional law even in cases where German Courts have to apply foreign law, see, for example, BVerfGE 31, 56 (74) – or that even acts of an international organization which have to be applied by German organs are subject to a constitutional control, see, for example, BVerfGE 89, 155 (174).Google Scholar

50 Bothe, M., International Obligations, Means to Secure Performance, in II Encyclopedia of Public International Law 1280 (R. Bernhardt ed., 1995).Google Scholar

51 15 U.N.C.I.O. Docs. 355.Google Scholar

52 Decision, supra note 1, para. 53.Google Scholar

53 In re Schmidt, 3 W.L.R. 228 (H.L. 1994); 721 F.2d 967 (4th Cir. 1983); Re Harnett and the Queen, 14 Canadian Criminal Cases 6 (Ontario High Court of Justice 1973).Google Scholar

54 Herdegen, M., Die völkerrechtswidrige Entführung eines Beschuldigten als Strafverfolgungshindernis, Europäische Grundrechtezeitschrift 1 (1986); S. Wilske, Die völkerrechtliche Entführung und ihre Rechtsfolgen, 103 (Berlin, 2000) (stating, however, that international law allows a trial only against a person who was lured to the forum State, not against a person who was abducted by force).Google Scholar

55 Decision, supra note 1, para. 54. However, it should be mentioned that even in cases in which a person was lured by an under cover agent to leave a country, that country might be entitled to restitution for violation of international law. BverfG, 2 BvR 1451/85 of 3.6.1986 (unpublished). Therefore, the Bundesgerichtshof (Federal Court of Justice) suspended a trial in order make the restitution, as required by the respective state, the Netherlands. The Federal Court of Justice emphazised that the restitution does not hinder Germany's right to punish the person. BGH, Monatsschrift des deutschen Rechts 427 (1987). If a trial is possible depends on the procedural question if it is admissible if the accused is absent.Google Scholar

56 BVerfGE 93, 248 (256); Justice Sommer is very sceptical in his dissenting opinion with respect to the recognition of the assurance given by the Sudanese government.Google Scholar

57 BverfG, 2 BvR 685/03 of 24.6.2003.Google Scholar

58 Decision, supra note 1, para. 75.Google Scholar

59 Not yet published, it is mentioned in Decision, supra note, para 77.Google Scholar

60 See supra note 10.Google Scholar

61 Decision, supra note 1, para. 76.Google Scholar

62 A material witness can be kept in detention for an unlimited period of time, if he is considered to be a witness in a grand jury case and if there is a risk of danger or flight. A person can be declared a material witness only, if a court issues a warrant; the material witness enjoys legal protection. After September 11, 2001 many persons were detained because they allegedly were material witnesses. In the recent Padilla case, the court decided that Padilla, being an American citizen who was arrested on American soil, cannot be detained as an enemy combatant, but that it is possible to detain him as a material witness. Padilla v. Rumsfeld, 352 F.3d 695, 699 (2nd Cir. 2003) available at http://news.findlaw.com/cnn/docs/padilla/padillarums121803opn.pdf.Google Scholar

That would mean that he can be detained until the end of the proceedings in which he might be a witness. Taking into account that investigation on the terrorist crimes against the U.S.A. are going on and that by now only one person has been accused on the events of September 11, 2003 – Moussaoui, and his proceedings were ended in first instance by U.S. District Judge Brinkema pursuant to the unwillingness of American authorities to put evidences at the judge's disposal which she considered necessary – it is not unlikely that the detention as a material witness may last many years. For further informations on the status of a material witness, see http://www.rcfp.org/secretjustice/terrorism/materialwitness.html.Google Scholar

63 Under article 102 of the GG, the death penalty is inadmissible; this means in a recent interpretation that an extradition to a State where the extradited person risks the death penalty is inadmissible. In this sense, article 8 of the German Law on International Cooperation in Legal Affairs does not allow an extradition if there is no guarantee that the death penalty will not be applied.Google Scholar

64 See LaGrand Case (Germany v. U.S.), 2001 I.C.J. No. 104 (June 27).Google Scholar

65 V. 1982 (BGBl. I S. 2071) (last amended by the Act of 21 Juni 2002, v. 21.6.2002 (BGBl. I S. 2144)).Google Scholar

66 Decision, supra note 1, para. 65.Google Scholar

67 This reflects a permanent case law; the Constitutional Court always was very reluctant in establishing constitutional requirements for controling court decisions of foreign states in extradition cases; most often it held that the ordinary courts may verify the facts, especially criminal convictions, on which a request for extradition is based; but as a rule, ordinary courts shall rely on the correctness of the decisions of foreign courts. However, there is an obligation to verify the legality of such a decision with respect to minimum standards of international law, especially in convictions in absence, BVerfGE 59, 280 (282); BVerfGE 63, 332 (337); BVerfGE 75, 1 (19).Google Scholar

68 Stein, T., Extradition Treaties, in II Encyclopedia of Public International Law 335 (R. Bernhardt ed., 1995).Google Scholar

69 In a former decision, the Constitutional Court had denied that an individual can refer to provisions of an extradition treaty unless rights of an individual are expressly established. BVerfGE 46, 214 (219); see also BVerfGE 57, 1 (25).Google Scholar

70 The first decision – in the Motadasseq case, in which the accused was convicted to imprisonment of 15 years -now is pending before the Federal Supreme Court and according to the reports about this trial the federal judges are very reluctant if the evidences at the disposal of the ordinary court could justify a conviction. In the second case – the Mzoudi-case – the court removed the arrest warrant when it got the information that un unknown witness – the court presumes that it was Binalshib who is in U.S. detention – declared that Mzoudi was not involved in the preparation of the attack on the World Trade Center. On February 5, 2004 Mzoudi was acquitted by the Higher Regional Court of Hamburg for lack of evidence according to the principle in dubio pro reo.Google Scholar