Germany: Rebuff for European Arrest Warrant
01 May 2005
A successful appeal by the German-Syrian businessman Mamoun Darkazanli (46) to his extradition to Spain under the European Arrest Warrant (EAW) has led to Darkazanli's release from prison, where he was detained since 8 October 2004 - as well as the revocation of the German law that implemented the EAW in June 2004. The EAW changed extradition procedures within the EU which now do not require the extraditing state to ensure that the crime in question exists in national law. The decision by the Federal Constitutional Court was welcomed by civil liberties groups and criticised by government officials as "a serious blow to the fight against terrorism" (Justice minister Brigitte Zypries). The European Commission has asserted that the German court decision only found the implementing law at fault and not the EU framework decision itself.
In April 2005, the Polish Constitutional Court also declared the EAW was incompatible with its Constitution, (see
Statewatch news online, April 2005), but a court ruling has been postponed until November 2006.
The German constitutional court's press release (18.7.01) declared that the warrant did not respect fundamental rights and procedural guarantees and so was contrary to the German Constitution:
According to the Court, the Act encroaches upon the freedom from extradition (Article 16.2 of the Basic Law (Grundgesetz - GG)) in a disproportionate manner because the legislature has not exhausted the margins afforded to it by the Framework Decision on the European arrest warrant in such a way that the implementation of the Framework Decision for incorporation into national law shows the highest possible consideration in respect of the fundamental right concerned. Moreover, the European Arrest Warrant Act infringes the guarantee of recourse to a court (Article 19.4 of the Basic Law) because there is no possibility of challenging the judicial decision that grants extradition.
The court therefore only criticised the manner in which the framework decision was implemented, not the legal text of the EAW itself. The Ministry of Justice is already rewriting the implementation legislation but it will not be passed by parliament before the expected general elections in September this year.
The EAW allows for extradition when the suspected crime is included on a so-called "positive list of criminal areas" which, according to Helmut Satzger, professor for European Criminal Law at the University of Munich, is far too vague. Interviewed by
Deutsche Welle news (13.4.05), Satzger explained: "For example: what exactly does sabotage mean?...We don't have a provision on the books to deal with sabotage in German law". The same applies to racism and xenophobia. He thinks that the German court's judges "are using the arrest warrant to answer some very fundamental questions about the relationship between European law and national law".
The law is criticised for potentially leading to many cases of miscarriages of justice. Not only terrorist suspects have to fear accelerated proceedings. A Hamburg dentist is amongst the 20 Germans currently affected by the EAW. He could expect a 30 year sentence in Spain for alleged involvement in financial transactions that served an international cocaine smuggling operation, which Hamburg judges find "unbearably high". The lawyer of a truck driver, who is to be extradited to Spain on grounds of alleged drugs trading, fears an unfair trial as well. Two more cases were presented at the Constitutional Court hearings that demonstrated the danger of accelerated proceedings: a Munich businessman and saleswoman who were wrongly accused of separate crimes were detained for months in Germany and then in Austria before Austrian courts cleared them of all charges.
Last but not least, civil liberties and prisoner support groups have criticised the EAW because of the severe consequences routine extradition will have on the accused and their friends a