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Human Dignity, Identity Review of the European Arrest Warrant and the Court of Justice as a Listener in the Dialogue of Courts: Solange-III and Aranyosi

BVerfG 15 December 2015, 2 BvR 2735/14, Solange III, and ECJ (Grand Chamber) 5 April 2016, Joined Cases C-404/15 and C-659/15 PPU, Aranyosi and Căldăraru

Published online by Cambridge University Press:  06 December 2016

Mathias Hong
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European Constitutional Law Review , Volume 12 , Issue 3 , December 2016 , pp. 549 - 563
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Copyright © The Authors 2016 

The Solange saga has a new chapter: the Solange-III ruling. The German Constitutional Court’s December 2015 decision on identity review of the European arrest warrantFootnote 1 has already received a response from the European Court of Justice in its April 2016 Aranyosi judgment.Footnote 2 We are witnessing a new phase in the judicial dialogue involving the Court of Justice, the European Court of Human Rights and the national constitutional courts, in which the Court of Justice increasingly presents itself as an attentive listener.

Solange-III

As long as the German Constitution remains in force, the German Federal Constitutional Court will enforce the Constitution’s right to human dignity, law of the European Union notwithstanding. That is the key message of the court’s historic 15 December 2015 decision on the European arrest warrant. Therefore, although the words ‘as long as’ (solange) do not appear in the text of the decision, it can still aptly be referred to as ‘Solange-III’.Footnote 3

Violation of the right to human dignity, Article 1(1) Grundgesetz

A citizen of the United States of America was sentenced, in Italy, to 30 years’ imprisonment, in his absence and without receiving notification or legal representation. He was convicted in 1992 by the Corte di Appello of Florence for membership of a criminal organisation and for importing and possessing cocaine. In 2014 he was arrested in Germany on the strength of a European arrest warrant. At the extradition proceedings he mainly protested that, in Italy, he would not necessarily be granted a full trial, that the Italian appellate review at his disposal was generally confined to points of law, and that it was left to the judge’s discretion whether new evidence would be taken.

The Higher Regional Court (Oberlandesgericht) allowed the extradition to Italy anyway. It cited a declaration by the Italian prosecution avowing that the complainant’s defence rights would be unreservedly guaranteed, and pointed out that a new taking of evidence in Italy was ‘at least not excluded’ (jedenfalls nicht ausgeschlossen). The Constitutional Court held that this violated his right to dignity (Article 1(1) Grundgesetz) and referred the case back to the Higher Regional Court.

The Constitutional Court’s holding, as far as the violation of human dignity is concerned, is straightforward enough. The Court’s reasoning consists of two steps. First: your right to dignity demands that before you are severely punished for a crime, your guilt has to be established beyond a reasonable doubt in a judicial process adhering to, at least, minimal procedural standards. To be sentenced to 30 years in jail without a meaningful chance to contest the taking of evidence in court falls short of that minimum standard. Second: it violates your right to dignity as well if you are extradited to a jurisdiction where you run a serious risk of such treatment.

A state must not ‘lend its hand’ to violations of dignity in another state, otherwise it will violate the right to dignity itself.Footnote 4 German courts have a legal responsibility to ensure that no such violation can take place.Footnote 5 Before allowing the extradition of an individual who was sentenced in absentia they have to establish that there will be a new evidentiary hearing. The Higher Regional Court, therefore, had to be sure that the complainant would get a fully-fledged, new trial in Italy. It could not allow itself to remain satisfied with the Italian prosecution’s all too vague assurances and the prospect that a new taking of evidence was ‘at least not excluded’.Footnote 6 The right to dignity demands more.

Identity review contra Melloni – but with a harmonious result

But that is, of course, not all there is to the judgment. The Constitutional Court does not merely hold that the right to human dignity is violated, it specifies that Article 1(1) is violated in conjunction with Articles 23(1)3 and 79(3) Grundgesetz.Footnote 7 That is, the Court finds that the complainant’s extradition would also infringe upon the Constitution’s identity. Constitutional identity was placed out of the reach of any of the merely constituted powers (pouvoirs constitués) – including the legislative power to amend the Constitution – by the constituent power (pouvoir constituant) itself, and therefore those powers cannot transfer it to the EU either.

The Court for the first time conducts an ‘identity review’ vis-à-vis the EU, an authority that it derived from Article 79(3) Grundgesetz in its 2009 Lisbon-judgment,Footnote 8 thereby reinterpreting the Solange-II Footnote 9 framework. By doing so in a case concerning the execution of a European arrest warrant the Court directly responds to – and disputes – the Court of Justice’s 2013 Melloni judgment, which states that the constitutions of the member states must not interfere with the Framework Decision on the European arrest warrant, as this would ‘undermine the principles of mutual trust and recognition which that decision purports to uphold’, and thereby violate the primacy of European law.Footnote 10

The German Constitutional Court, as is common knowledge, does not accept a genuine supremacy of EU law over the German Constitution, but only a precedence in application (Anwendungsvorrang) that is, in its view, both granted and limited by the German Constitution.Footnote 11 Accordingly, in response to Melloni it emphasises that the requirements of the Framework Decision do not discharge German authorities from their duty to secure human dignity and the minimal standard of the rights of the accused guaranteed by Article 1(1) Grundgesetz.Footnote 12 The Court holds that the principle of mutual trust governing extraditions within the Union is ‘insofar as limited by the constitutional guarantee of dignity’.Footnote 13

The Court sees no need to enforce this limitation in the case before it. The identity review undertaken by the Court instead has a rather harmonious result: the Court sees no conflict between the Constitution’s demands and EU law – and hence no need to disregard the latter. After a thorough examinationFootnote 14 the Court concludes that Union law: (1) does not dictate the complainant’s extradition, but rather permits its suspension and (2) even demands that the extraditing authorities conduct an inquiry.Footnote 15

The Constitutional Court considers the first of these findings (European permission to review the complainant’s case and to uphold human dignity by refusing his extradition) to be so obvious as to constitute an ‘acte clair’, so it sees no need to refer the question to the European Court of Justice for a preliminary ruling.Footnote 16 Because this first finding is enough to preclude any conflict with EU law, it does not matter that the Court considers the second finding (European duty to investigate before extradition) less obvious, at least in its implications for the individual case.Footnote 17 Whether EU law in fact even dictates this result is of no importance to the Court, as long as the law of the Union does not stand in the way of securing the Constitution’s guarantee of dignity.

In particular, the Court holds that Article 4a(1)(d)(i) of Framework Decision 2002/584, introduced therein by Framework Decision 2009/299, has to be construed to allow a refusal to execute a European arrest warrant, if a conviction rendered in absentia is not open to a review in the issuing Member State which fulfills the conditions mentioned in that provision. This means such a refusal is justified if the review is not ‘a retrial, or an appeal, in which the person has the right to participate and which allows the merits of the case, including fresh evidence, to be re-examined, and which may lead to the original decision being reversed’.

The Court draws this conclusion from an interpretation of the Framework Decision’s wording, structure, legislative history and purpose.Footnote 18 Additionally, it sees its interpretation as mandated by the need to avoid violations of the fundamental rights of the UnionFootnote 19 as concretised, according to Article 52(3)1 of the Charter, by the corresponding rights of the European Convention on Human Rights as interpreted by the European Court of Human Rights.Footnote 20 Remarkably, the Court’s rather extensive analysis of Union law fails to mention the right to human dignity enshrined in Article 1 of the Charter of Fundamental Rights of the European Union.

In summary, although the Constitutional Court holds that the Higher Regional Court violated the right to human dignity and thereby the Constitution’s identity, it holds at the same time that Union law did not compel the Higher Regional Court to do so and that there is thus no reason to set aside Union law.

No, it’s not all just obiter dicta – because the Court interprets ‘determined by Union law’ (too) broadly

The Court, thus, did not set off the ‘identity review bomb’.Footnote 21 It was only priming it for detonation. But was even that necessary? Was all talk about ‘dignity’ and ‘identity review’ not completely superfluous, considering that no conflict with Union law had been established? Could the Court, without entering these thickets, not simply have restricted itself to finding a violation of the right to a fair trial and the right to a hearing?Footnote 22 In other words: was it all just obiter dicta?

The answer is no, and no again: first, as for the Court’s holding regarding dignity, the answer can only be a simple and unequivocal no. If a violation of the right to dignity has been properly claimed, as it was in this case,Footnote 23 a ruling on that complaint is per se not an obiter dictum, but simply a discharge of the Court’s first and foremost duty to protect this highestFootnote 24 of constitutional values.

Second, as for the statements on identity review, the answer is also no, albeit a more complex no. Yes, the assertions on the Constitution’s primacy could have been obiter dicta if the Court had stuck to a narrow interpretation for assessing when a national decision is ‘determined by Union law’. But no: when measured, as they must be,Footnote 25 against the Court’s actual line of reasoning, the statements on identity review were in fact not merely obiter dicta. The second of the Court’s two Senates applied another, broader, definition of ‘determined by Union law’.

To unpack this: the Constitutional Court established an important clarification of the Solange-II framework when the First Senate issued its 2007 decision on emission trading.Footnote 26 The Court does not exercise jurisdiction over an act of a German public authority, if that act is ‘determined by Union law’, so that Union law leaves no leeway for the member state. What this criterion – ‘determined by Union law’ – actually means, has, however, remained far from clear since it was first coined in 2007. The Second Senate now adopts this criterion in Solange-III, applying it to identity review as developed in its 2009 Lisbon judgment – and defines it broadly. It holds that the decision of the Higher Regional Court was ‘determined by Union law’ simply because it was in a general sense regulated by the Framework Decision on the European arrest warrantFootnote 27 , although its specific result, allowing extradition, was not dictated by Union law. It was enough, according to the Constitutional Court, that the Framework Decision regulates extraditions in the event of conviction in absentia in a basically definitive manner, even though for the case at hand the Framework Decision and the Charter of Fundamental Rights of the European Union did allow, might even have demanded, the opposite result, namely, to halt the extradition.

This broad definition of ‘determination’ by Union law is, as I hasten to add, not the preferable one. It not only seems counterintuitive – how can a decision be ‘determined’ by Union law, if the outcome in the case at hand is not determined by Union law – but also incompatible with the Constitution’s explicit rule stating that constitutional rights are immediately binding law (Article 1(3) Grundgesetz): only if Union law conflicts with those rights and in a specific case demands they be disregarded, can it be justified to encroach upon the Constitutional Court’s function as a guardian of those rights.Footnote 28 ‘Determination by Union law’ should therefore be interpreted more narrowly: a decision is determined by Union law if, and only if, Union law: (1) dictates a specific outcome; and (2) dictates it in a way that conflicts with the Constitution.

But this was not the way the Court interpreted ‘determined by Union law’. It unfortunately did not even consider the more restrictive definition. Instead, it proceeded, without further ado, to broadly define ‘determined’ as ‘generally determined by Union law’. Maybe it did so because it interpreted Solange-II’s spirit and trajectory as dictating the corresponding division of labour between itself and the European Court of Justice: as long as the Union protects basic rights in a manner generally compatible with national standards, the Constitutional Court will stay out of the business of reviewing national acts in those areas of law that are in a general sense regulated by Union law, except where the constitutional barriers to European integration are affected.

From the Second Senate’s point of view, it could only rule on the merits of the case if the threshold for the admissibility (Zulässigkeit) of an identity review was crossed, a stringent standardFootnote 29 (although not nearly as stringent as the Solange-II threshold). Since it considered the Higher Regional Court’s decision to have been determined by Union law, an assertion of an ‘ordinary’ violation of the right to a fair trial and the right to a hearing would not have sufficed. It would have been inadmissible from the outset. Without the claim that dignity, and therefore constitutional identity, had been violated, the case could never have proceeded to a ruling on the merits (Begründetheit). Judging by the Senate’s actual reasoning, its statements on constitutional identity were therefore not dicta, but a necessary prerequisite for any ruling on the merits.

Violation of the principle of guilt

The Constitutional Court’s ruling knits together two strands of its long-standing case law on human dignity: its rulings on the principle of guilt as a prerequisite for punishmentFootnote 30 ; and its rulings on dignity as a barrier to extradition.Footnote 31

The right to dignity contains the principle of guilt (Schuldprinzip), which dictates that any punishment presupposes the individual guilt of a perpetrator for a specific deed and that it be proportionate to the degree of guilt. It therefore precludes punishment that exceeds the extent of the guilt. The Constitutional Court, which has long held that this principle is a consequence of human dignity, has also emphasised since its 2009 Lisbon-judgment that the principle is impervious to constitutional amendment, and will therefore also be upheld with regard to the European Union.Footnote 32

The principle of guilt mandates ‘minimum guarantees of the rights of the accused in criminal trials’.Footnote 33 To make sure that punishment does not exceed the individual guilt of the accused, a court generally needs to gain a personal impression, at public trial, of his personality and motivation.Footnote 34 The accused must also be able to assert exonerating or mitigating circumstances and to have them examined.Footnote 35 If he is not to be treated as a ‘mere object’ (bloßes Objekt) by the state, he must be able to take part in the proceedings, react to accusations and bring forward exculpatory evidence.Footnote 36

Violation of the essence of dignity in the right to a hearing and the right to a fair trial (due process)

That a state must not treat a human being as a ‘mere object’ is, of course, the well-known ‘object formula’ (Objektformel) that the Court has continually used to describe a violation of the state’s duty to respect human dignity. The formulation was coined by Josef Wintrich and Günter Dürig – borrowing from Kant. The European Court of Human Rights has also occasionally used a variation of it, albeit omitting the – crucial – restriction that only a treatment as a ‘mere’ object is forbidden.Footnote 37

The use of the object formula at this point in the Court’s reasoning is anything but surprising. In fact, the Constitutional Court first adopted the formula precisely for the two more specific procedural rights which are decidedly at issue here, although the ruling, regrettably, does not expressly refer to them: the right to a hearing (Article 103 Grundgesetz)Footnote 38 and the right to a fair trial (or due process) derived from Articles 2(1) and 20(3) Grundgesetz.Footnote 39

It is a shortcoming of the ruling that it does not point out the connection between the ‘majestic generalities’Footnote 40 of human dignity and the principle of guilt and these specific rights. In its final OMT judgment the Second Senate stated more plainly that Article 79(3) Grundgesetz shields not only the right to dignity itself from constitutional amendment but the essence or ‘core of dignity’ (Menschenwürdekern) of other fundamental rights as well.Footnote 41 At least in hindsight, therefore, the Solange-III judgment can plausibly be read as addressing not only the right to human dignity and the principle of guilt in the abstract, but also, in more concrete terms, the essence of dignity of the right to a hearing and the right to a fair trial.

In a September 2016 decision, one of the Court’s chambers confirmed this reading by pointing out that an extradition to the United Kingdom, executing a European arrest warrant, did not violate the nemo-tenetur-principle’s ‘core content’ (Kerngehalt)Footnote 42 or ‘core area’ (Kernbereich).Footnote 43

The concept of an ‘essence of dignity’ or a ‘core of dignity’ of fundamental rights as a way to escape dignity’s vagueness

Human dignity is a notoriously vague concept. It can be asked, quite legitimately, if it is not even so vague as to render it not properly justiciable.Footnote 44 But there is a way to escape dignity’s vagueness: get specific and focus on the essence of dignity of the constitutional right in question. The German Constitutional Court has used the term ‘human dignity’ continually and for well over 60 years now, deriving fairly strict and specific constitutional limits from it.

The concept of a core or essence of constitutional rights flowing from the right to human dignityFootnote 45 is by now well developed in the Constitutional Court’s case law. To begin with, the Court has acknowledged that fundamental rights have an essence that is unalterable even by constitutional amendment. It first acknowledged this regarding the rights to property and equality (Article 14 and Article 3 Grundgesetz) in its decisions on communist takings of land in Eastern Germany, citing all three sections of Article 1 Grundgesetz.Footnote 46 It then established the term ‘content of dignity’ (Menschenwürdegehalt) for these unalterable elements of fundamental rights, in its 2004 judgment on acoustical home surveillance.Footnote 47 It recognised in that judgment that dignity shields a core area of privacy from any and all infringement – not only within the right to respect for the home (Article 13), but also within marriage and family rights (Article 6),Footnote 48 the freedom of religion (Article 4)Footnote 49 and the general right to respect for personality (allgemeines Persönlichkeitsrecht) (Article 2(1) in conjunction with Article 1(1) Grundgesetz).Footnote 50

The Court has, moreover, stated in general terms that human dignity is the foundation of all constitutional rights and that all of those rights concretise the principle of dignity.Footnote 51 Although it has, on the other hand, explicitly denied the existence of a core of dignity to one (and currently only one) constitutional right, namely the right to asylum for the politically persecuted (Article 16a(1) Grundgesetz), it did so while reaffirming the concept of an unalterable content of dignity as such. It did also point out that protection of the persecuted from deportation is a separate matter that is dealt with in Article 1(1) Grundgesetz itself.Footnote 52

In a rich body of case law, the Court has also derived a panoply of specific protections from the guarantee of human dignity, without explicitly referring to the boundaries of constitutional amendment given by Article 79(3) Grundgesetz. For example, it has ruled that human dignity limits the extent to which online searches may be conducted upon computers and other electronic devices.Footnote 53 In a 2016 ruling on the federal criminal agency statute it forcefully reaffirmed and advanced the case law concerning an entire range of government surveillance methods from which the ‘core area of private life’ is shielded by Article 1(1) Grundgesetz.Footnote 54

The Court also held that it would violate the rights to life and human dignity of the innocent occupants aboard to shoot down an abducted aircraft to save the lives of others under non-warlike circumstances (nichtkriegerischer Art), such as in an 11 September 2001 scenario.Footnote 55 The European Court of Human Rights explicitly referred to this judgment in its own 2011 Finogenov judgment. It distinguished such a deliberate killing of innocents from the 2002 hostage rescue operation in the Dubrovka theatre in 2002, in which the narcotic gas used by the Russian security forces, ‘although dangerous, was not supposed to kill’ the terrorist’s hostages.Footnote 56

One can, of course, argue about each of the Constitutional Court’s decisions. It can be demonstrated, however, that the basic principles of the Court’s longstanding case law match the original meaning of Article 1 Grundgesetz: the right to human dignity was meant to be concretised by an essence of dignity contained within each of the other constitutional rights.Footnote 57 That core of dignity was understood to be narrow, although capable of limited evolution,Footnote 58 thereby allowing for a measure of ‘living originalism’Footnote 59 as well.

Absolute rights?

Since its Lisbon-judgment the Constitutional Court has stressed the absolute nature of the constitutional identity protection embodied in Article 79(3) Grundgesetz. It affirms this view again in Solange-III.Footnote 60 As far as human dignity is concerned, this also comports with the Court’s previous case law. From the beginning, the Court has considered the right to dignity and the essence of dignity in other constitutional rights to be absolutely protected from infringement. They do not yield to any case-by-case balancing against countervailing interests.

But are such absolute rights even rationally possible? One forceful objection claims that because all human propositions are fallible, all rights have to remain susceptible to case-by-case balancing with opposing arguments.Footnote 61 But that objection is, ultimately, misleading: absolute rights do not need to be irrefutable or absolutely certain. They do not depend on epistemic miracles. It is enough if the balancing of reasons leads to the conclusion that the right will with sufficient certainty outweigh all countervailing arguments, so that exceptions to the right can be excluded. If that is the case, it would not be irrational to hold the right to be absolute. On the contrary, it would be irrational to keep insisting that there must be exceptions to the right and that it must therefore be possible to subject it to case-by-case balancing. Until proven wrong the claim is then justified that the right is ‘balancing-proof’.

Again, one could of course argue about many of the potential instances in which the essence of dignity of any given constitutional right is concretised. But one might still be able to agree that there are some strict limits that may never be crossed. Whoever thinks, for example, that the core of dignity of the right to life is not necessarily violated if an aircraft with innocent passengers is shot down to save the lives of others, might still concede that the essence of dignity of that right is always violated if the plane is shot down not to save other lives, but to avoid property damage, however great that might be.

Aranyosi – The Court of Justice’s swift response to Solange-III

It took the European Court of Justice only a few months to react to Solange-III. It did so, sitting as a Grand Chamber, in a preliminary ruling on 5 April 2016 in the two joined cases Aranyosi and Căldăraru.

The ruling was sought by the German Higher Regional Court of Bremen, which had to decide on the extradition of Mr Aranyosi to Hungary and of Mr Căldăraru to Romania. Could the courts of the member states refuse to execute a European arrest warrant because the person to be extradited might face inhumane or degrading conditions of detention, such as cramped or overcrowded cells? The Grand Chamber basically answered that they could, at least under certain limiting conditions, because interpretation of the Framework Decision must take the prohibition of inhuman or degrading treatment of Article 4 of the Charter of Fundamental Rights of the European Union into account.

Aranyosi marks a remarkable change in tone and posture compared to Melloni. Whereas Melloni was all about the Framework Decision being conclusive and excluding any additional individualised review, Aranyosi is all about the need to secure fundamental rights in an individual case. It thereby takes Article 1(3) of the Framework Decision seriously, which states explicitly that the Framework Decision ‘shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6’. The judgment confirms the significance of the principles of mutual recognition and of mutual trust between member states, but clarifies that those principles are not absolute and can be overridden ‘in exceptional cases’.Footnote 62

The prohibition of inhuman or degrading treatment is, however, absolute, as the Grand Chamber stresses by explicitly basing that absolute character on the close link between the prohibition and the right to human dignity: the prohibition of inhuman or degrading treatment ‘is absolute in that it is closely linked to respect for human dignity, the subject of Article 1 of the Charter’ of Fundamental Rights of the European Union.Footnote 63

In rather general terms the judgment goes on to state that the ‘consequence of the execution of’ a European arrest warrant for an individual ‘must not be that that individual suffers inhuman or degrading treatment’.Footnote 64 Although this statement undeniably seems to call for an individual risk assessment, the Court of Justice’s reply to the request itself could be construed differently. It seems to presuppose that there already ‘is’ specific evidence at least of mistreatment in ‘certain places of detention’ before a member state may refuse to execute a European arrest warrant.Footnote 65 That could be understood to imply that, for such a refusal, evidence relating to ‘general conditions of detention’Footnote 66 is a necessary, but on its own insufficient, precondition. But what if the case of the accused is the very first brought before a Court? What if he can demonstrate a serious individual risk of mistreatment, although his case would be the first (documented) case of inhuman or degrading treatment in a certain place of detention or even the first case in a certain member state? To ignore such a possibility from the outset could lead to conflict with the case law of the European Court of Human Rights as well as with the German Constitutional Court’s identity review.

Although some remaining questions need to be resolved, the Aranayosi judgment represents, without a doubt, a huge step by the European Court of Justice in the direction of the position taken by the European Court of Human Rights and the German Constitutional Court. This step significantly reduces the distance that Melloni seemed to create. In the dialogue of human rights courts, the European Court of Justice has once again proven itself to be an attentive listener – as it had done previously in the Digital Rights Ireland judgment which voided the data retention Directive,Footnote 67 drawing heavily on the German Constitutional Court’s earlier decisionFootnote 68 on the national statute implementing that Directive.

Conclusion

Solange-III is good news for the protection of fundamental rights within the European Union. Identity review based upon the right to dignity can and should, however, be understood to provide only a narrow exception to the precedence of application of Union law. The German Constitutional Court could, of course, be tempted to interject the concept of human dignity too far into the realm of ‘ordinary’ fundamental rights.Footnote 69 It would be advisable for the Court to find additional solutions for those ordinary cases, for example by Europeanising – in substance – constitutional rights or by broadening the Court’s jurisdiction to encompass Union rights as well.Footnote 70 That is, it could allow for the interpretation of constitutional rights in the light of the fundamental rights of Union law or it could regard those fundamental rights as additionally applicable rights falling under its own jurisdiction. In any case, it should define the area of ‘determination’ by Union law narrowly so as to retain its jurisdiction where there is no material conflict with Union law in the case at hand.

If identity review for violations of human dignity is kept limited to the indispensable essence of dignity of constitutional rights – as it should be – it can then rely safely upon the solid foundations provided by the text, history and structure of the German Constitution and in the case law of the Constitutional Court. And if exercised responsibly, it will in all likelihood not weaken, but rather strengthen the legitimacy of the European Court of Justice. The dialogue taking place within the European and global community of courtsFootnote 71 will become increasingly indispensable. The European Court of Justice, without doubt, also stands to gain from a continuing cooperative dialogue with the member states’ constitutional courts – especially in matters of such fundamental importance as the national constitutional identity, for which Article 4 EU ensures the Union’s respect.

Footnotes

*

The following case note expands and revises M. Hong, ‘Human Dignity and Constitutional Identity: The Solange-III-Decision of the German Constitutional Court’, Verfassungsblog, 18 February 2016, <verfassungsblog.de/human-dignity-and-constitutional-identity-the-solange-iii-decision-of-the-german-constitutional-court/>, visited 9 October 2016.

References

1 BVerfG, 2 BvR 2735/14 of 15 December 2015, Solange-III; cf. also BVerfG (Chamber), 2 BvR 890/16 of 6 September 2016. See also Reestman, J. H. and Besselink, L. F. M., ‘Editorial: Sandwiched between Strasbourg and Karlsruhe: EU fundamental rights protection’, 12 EuConst (2016) p. 213 Google Scholar. Decisions of the German Constitutional Court are cited according to either the Court’s homepage (www.bundesverfassungsgericht.de/; with §§ numbers referring to the marginal numbers used there) or its official reports; e.g. BVerfGE 120, 274 (335-339), pointing to the decision in volume 120 of the reports, starting at p. 274, and referring specifically to pp. 335-339. See also for a collection of decisions including the report’s pagination, <www.servat.unibe.ch/dfr/dfr_bvbd130.html>, visited 9 October 2016 (e.g. vor BVerfGE 120, 274, <sorminiserv.unibe.ch:8080/tools/ainfo.exe?Command=ShowPrintVersion&Name=bv120274>, visited 4 August 2016).

2 ECJ (Grand Chamber) 5 April 2016, Joined Cases C-404/15 and C-659/15 PPU, Aranyosi and Căldăraru. See also Reestman and Besselink, supra n. 2.

3 Cf., also using this name, e.g. C. Bilz, ‘Konfrontation statt Kooperation? “Solange III” und die Melloni-Entscheidung des EuGH’, JuWissBlog, 15 March 2016, <www.juwiss.de/26-2016/>, visited 5 October 2016. See also, pondering it, F. Schorkopf, ‘BVerfG aktiviert Identitätskontrolle: Karlsruhe will Kommunikation, nicht Konfrontation’, 29 January 2016, <www.lto.de/recht/hintergruende/h/bverfg-2bvr273514-eu-haftbefehl-auslieferung-verfassungsidentitaet-menschenwuerde-gg-eu-recht-emrk>, visited 5 October 2016. Calling the judgment ‘Solange-Two-and-a-half’: C. Goos, ‘Solange Zweieinhalb – Teil 1’, <www.juwiss.de/14-2016/>, visited 5 October 2016.

4 BVerfG, 2 BvR 2735/14 of 15 December 2015, Solange-III, § 62 (die deutsche Hoheitsgewalt darf ‘die Hand nicht zu Verletzungen der Menschenwürde durch andere Staaten reichen’).

5 Cf. §§ 59-60 (‘Gewährleistungsverantwortung’).

6 Cf. §§ 17, 109, 113, 120, 123.

7 Cf. § 35.

8 BVerfGE 123, 267 (352-355) Lissabon (2009); cf. English translation www.bundesverfassungsgericht.de/SharedDocs/Entscheidungen/EN/2009/06/es20090630_2bve000208en.html, visited 9 October 2016, §§ 240-241.

9 BVerfGE 73, 339 (387) Solange-II (1986).

10 Cf. ECJ (Grand Chamber) 26 February 2013, Case C-399/11, Melloni v Ministerio Fiscal, §§ 59, 63-64.

11 Cf., e.g., BVerfGE 123, 267 (348-349, 354, 397, 400, 402) Lissabon (2009). Cf. English translation, supra n. 8, §§ 240 (‘the primacy [...] only applies by virtue and in the context of the constitutional empowerment’), 331-332 (‘primacy by virtue of constitutional empowerment’), 334-335, 339, 343. See also the references to similar rulings by courts of multiple other member states in: BVerfG, 2 BvR 2735/14 of 15 December 2015, Solange-III, § 47.

12 BVerfG, 2 BvR 2735/14 of 15 December 2015, Solange-III, §§ 78, 82-83 (explicitly quoting Melloni).

13 Cf. § 83; emphasis added.

14 Cf. BVerfG, 2 BvR 2735/14 of 15 December 2015, Solange-III, §§ 85-107.

15 Cf. § 105: ‘Das Unionsrecht steht daher Ermittlungen [...] durch die nationalen Justizbehörden nicht nur nicht im Wege, es verlangt sie.’

16 Cf. § 125.

17 Cf. § 125: ‘Grenzen der Ermittlungspflicht [...] in der Rechtsprechung des Gerichtshofs der Europäischen Union nicht geklärt [...]’.

18 Cf. §§ 86-90.

19 Cf. §§ 91-97, referring to Art. 47 and Art. 48 of the Charter of Fundamental Rights of the European Union and to the right to an effective legal remedy as a general principle of Union law.

20 Cf. §§ 98-104, referring to the case law on Art. 6 ECHR. See additionally, meanwhile, Art. 9 (‘Right to a new trial’) of Directive (EU) 2016/343 of 9 March 2016 (‘Member States shall ensure that, where suspects or accused persons were not present at their trial and the conditions laid down in Article 8(2) were not met, they have the right to a new trial, or to another legal remedy, which allows a fresh determination of the merits of the case, including examination of new evidence, and which may lead to the original decision being reversed. In that regard, Member States shall ensure that those suspects and accused persons have the right to be present, to participate effectively, in accordance with procedures under national law, and to exercise the rights of the defence’).

21 For that term see M. Steinbeis, Europarechtsbruch als Verfassungspflicht: Karlsruhe zündet die Identitätskontrollbombe, Verfassungsblog, 26 January 2016, <verfassungsblog.de/europarechtsbruch-als-verfassungspflicht-karlsruhe-zuendet-die-identitaetskontroll-bombe., visited 9 October 2016.

22 Cf. for this allegation e.g. Sauer, H., ‘“Solange” geht in Altersteilzeit – Der unbedingte Vorrang der Menschenwürde vor dem Unionsrecht’, 69 Neue Juristische Wochenschrift (2016) p. 1134 Google Scholar ff; Schönberger, C., ‘Anmerkung’, 71 Juristen Zeitung (2016) p. 422 CrossRefGoogle Scholar at p. 424 (‘judikative Kommunikationspolitik’– ‘judicial politics of communication’).

23 Cf. BVerfG, 2 BvR 2735/14 of 15 December 2015, Solange-III, §§ 25, 34, 50.

24 For the proposition, that dignity is constitution’s highest value, see, e.g. BVerfGE 5, 85 (204); 6, 32 (41); 27, 1 (6); 32, 98 (106); 54, 148 (153); 61, 126 (137); 72, 155 (170); 75, 369 (380); 96, 375 (399); 79, 256 (268); 95, 220 (241); 102, 370 (389); 108, 282 (305); 109, 279 (311); 115, 118 (152); 117, 71 (89).

25 Cf. BVerfGE 96, 375 (404); 96, 409 (410).

26 Cf. BVerfGE 118, 79 (95-96) – Emmissionshandel (2007).

27 Cf. BVerfG, 2 BvR 2735/14 of 15 December 2015, Solange-III, § 76. But see also, interestingly, the more cautious statement of one of the three-justice chambers of the Court in a subsequent preliminary injunction, which speaks only of an ‘at least partial’ determination: BVerfG (Chamber), 2 BvR 890/16 of 6 May 2016, § 18 (‘Der Auslieferungsverkehr der Bundesrepublik Deutschland mit anderen Mitgliedstaaten [...] ist durch den Rahmenbeschluss [...] zumindest teilweise unionsrechtlich determiniert’), emphasis added.

28 Sauer, supra n. 22, p. 1136.

29 Cf. BVerfG, 2 BvR 2735/14 of 15 December 2015, Solange-III, §§ 34, 50.

30 Cf., e.g., BVerfGE 57, 250 (275) – V-Mann (1981); 90, 145 (173) – Cannabis (1994); 122, 248 (270) – Rügeverkümmerung (2009); 128, 326 (376) – Sicherungsverwahrung (2011); 130, 372 (389) – Maßregelanrechnung (2012).

31 Cf., e.g. BVerfGE 113, 273 (303-304) Europäischer Haftbefehl (2005); 113, 154 (164-165) – Auslieferung USA (2005).

32 BVerfGE 123, 267 (463) Lissabon (2009); cf. English translation, supra n. 8, § 364: ‘The principle that any sanction presupposes guilt thus has its foundation in the guarantee of human dignity [...]. The principle of guilt forms part of the constitutional identity which is unassailable due to Article 79.3 of the Basic Law and which is also protected against encroachment by supranational public authority.’

33 Cf. §§ 52, 56, 59, 76, 83 ff, 107.

34 Cf. § 58.

35 Cf. § 56.

36 Cf. § 61.

37 Cf. ECtHR 25 April 1978, Case No. 5856/72, Tyrer v United Kingdom, § 33 (‘... he was treated as an object in the power of the authorities…’); ECtHR (Grand Chamber) 28 September 2015, Case No. 23380/09, Bouyid v Belgium, § 90.

38 Cf. BVerfGE 7, 53 (57 ff) Armenrecht (1957). For the connection to human dignity see, e.g. BVerfGE 9, 89 (95) Haftbefehl (1959).

39 Cf., e.g. BVerfGE 26, 66 (71) Nebenklage (1969); 46, 202 (210) Pflichtverteidiger (1977). For the connection to dignity: BVerfGE 57, 250 (274 ff) V-Mann (1981); 122, 248 (271) Rügeverkümmerung (2009).

40 Cf. U.S. Supreme Court, West Virginia State Board of Education v Barnette 319 U.S. 624, 639, Justice Jackson, Opinion of the Court (‘True, the task of translating the majestic generalities of the Bill of Rights ... into concrete restraints on officials ..., is one to disturb self-confidence’.

41 BVerfG, 2 BvR 2728/13 of 21 June 2016, OMT, § 138 (‘Das betrifft die Wahrung des Menschenwürdekerns der Grundrechte ...’); cf. English press release, <www.bundesverfassungsgericht.de/SharedDocs/Pressemitteilungen/EN/2016/bvg16-034.html>, visited 9 October 2016 (‘This concerns the protection of the fundamental rights’ core of human dignity (Art. 1 GG)’).

42 BVerfG (Chamber), 2 BvR 890/16 of 6 September 2016, §36 (‘der unmittelbar zur Menschenwürde gehörende Kerngehalt der Selbstbelastungsfreiheit’).

43 Cf. §§ 36, 39.

44 See, e.g. C. Goos, ‘Solange Zweieinhalb – Teil 2’, </www.juwiss.de/15-2016>, visited 9 October 2016.

45 See also Grimm, D., ‘Dignity in a Legal Context: Dignity as an Absolute Right’, in C. McCrudden (ed.), Understanding Human Dignity (Oxford University Press/British Academy 2013) p. 381 CrossRefGoogle Scholar at p. 390 (‘dignity core’).

46 BVerfGE 84, 90 (126 ff) Bodenreform (1991) (‘Fundament aller Grundrechte’); 94, 12 (34) Bodenreform (1996).

47 BVerfGE 109, 379 (279, 310-311, 313-314, 319-320) Wohnraumüberwachung (2004).

48 BVerfGE 109, 379 (321-322) (for intimate conversations with a spouse – whereas the absolutely protected area does not include conversations that are immediately related to concrete criminal offences, cf. ibid., 319-320).

49 BVerfGE 109, 379 (322) (for confessional conversations with a cleric).

50 Cf. BVerfGE 109, 379 (326) (as far as the surveillance does not affect the occupier of the home but other persons, for example his guests).

51 Cf. BVerfGE 93, 266 (293) Soldaten (1995) (‘Wurzel aller Grundrechte’; ‘sämtliche Grundrechte’ sind ‘Konkretisierungen des Prinzips der Menschenwürde’); 107, 275 (284) Benetton (2003) (‘Fundament aller Grundrechte’).

52 BVerfGE 94, 49 (103) Drittstaaten (1996).

53 BVerfGE 120, 274 (335-339) Online-Durchsuchung (2008); English translation, <www.bundesverfassungsgericht.de/SharedDocs/Entscheidungen/EN/2008/02/rs20080227_1bvr037007en.html>, visited 9 October 2016, §§ 270-287.

54 BVerfG, 1 BvR 966/09 of 20 April 2016, BKAG, §§ 119-130.

55 BVerfGE 115, 118 (153-158) Luftsicherheitsgesetz (2006); cf. English press release, <www.bundesverfassungsgericht.de/SharedDocs/Pressemitteilungen/EN/2006/bvg06-011.html>, visited 9 October 2016.

56 ECtHR 20 December 2011, Case No. 18299/03, Fingenov and others v Russia, § 232.

57 Cf., in particular, Hermann v Mangoldt in Deutscher Bundestag/Bundesrat (eds.), 5 Der Parlamentarische Rat – 1948-1949, Akten und Protokolle, Ausschuss für Grundsatzfragen (1993) p. 591 (‘[J]eder Artikel für sich gewährleistet ein Stück Freiheit, das notwendig ist, um die Menschenwürde zu gewährleisten’) (‘[E]ach article separately safeguards a piece of freedom that is necessary to safeguard human dignity’, translation by the author). A legitimate role for legislative history in legal interpretation (although it was, of course, sharply rejected by Justice Antonin Scalia and is still frowned upon by many current originalists) is recognised, e.g., (even) by R. Dworkin, Law’s Empire (Harvard University Press 1986) p. 342-350. See also Nourse, V. F., ‘A Decision Theory of Statutory Interpretation’, 122 Yale Law Journal (2012) p. 70Google Scholar at p. 72 with references in n. 1) (‘Legislative history’s fires still burn, despite repeated attempts to extinguish them’), and (after Scalia’s passing): U. S. Supreme Court, Evenwell v. Abott, 4 April 2016, No. 14-940, Justice Ginsburg, Opinion of the Court (Slip Op.), p. 8-13 (in particular p. 10-11).

58 Cf., e.g., Deutscher Bundestag/Bundesrat, supra, n. 57, p. 94, 594, 601, 603.

59 For the concept of a living originalism see J. Balkin, Living Originalism (Harvard University Press 2011); see also Tribe, L. H., ‘America’s Constitutional Narrative’, 141 Daedalus (2012) p. 18 CrossRefGoogle Scholar at p. 21, 35 (n. 10); A. R. Amar, America’s Unwritten Constitution (Basic Books 2012) p. xiii.

60 BVerfG 15 December 2015, 2 BvR 2735/14, Solange-III, § 49 (‘Die [...] für integrationsfest erklärten Schutzgüter dulden auch keine Relativierung im Einzelfall [...].’).

61 See e.g. Alexy, R., A Theory of Constitutional Rights (Oxford University Press 2009) p. 62-66 Google Scholar.

62 Cf. ECJ (Grand Chamber) 5 April 2016, joined Cases C-404/15 and C-659/15 PPU, Aranyosi and Căldăraru, § 78, 82.

63 Cf. § 85, emphasis added.

64 Cf. § 88.

65 Cf. §§ 89, 93, 105.

66 Cf. § 91.

67 ECJ (Grand Chamber) 8 April 2014, Joined Cases C-293/12 and C-594/12 Digital Rights Ireland v Minister for Communications, Marine and Natural Resources.

68 BVerfGE 125, 260 Vorratsdaten (2010); English translation, <www.bundesverfassungsgericht.de/SharedDocs/Entscheidungen/EN/2010/03/rs20100302_1bvr025608en.html>, visited 9 October 2016.

69 For an early warning see Bäcker, M., ‘Solange IIa oder Basta I? Das Vorratsdaten-Urteil des Bundesverfassungsgerichts aus europarechtlicher Sicht’, 46 EuR (2011) p. 111 Google Scholar at p. 116-120.

70 See for suggestions in those directions, Bäcker, M., ‘Das Grundgesetz als Implementationsgarant der Unionsgrundrechte’, 50 EuR (2015) p. 389 Google Scholar at p. 408-411.

71 On ‘persuasive authority’ (as opposed to ‘precedential authority’) as a basis for a doctrinal role of the dialogue of courts see Slaughter, A.-M., ‘A Global Community of Courts’, 44(1) Harvard International Law Journal, (2003) p. 191 Google Scholar at p. 199-202.