NationStates Jolt Archive


German High Court Overrules EU Expedited Extradition Treaty

Eutrusca
19-07-2005, 14:47
COMMENTARY: There have been a number of posts about the Supreme Court of the US on here, but not many about the courts of other nations. This one about the German high court seems to indicate that they can overrule international treties, such as the European Union treaty establishing expedited extradition between member nations.


German High Court Blocks Qaeda Suspect's Extradition (http://www.nytimes.com/2005/07/19/international/europe/19germany.html?th&emc=th)


By RICHARD BERNSTEIN
Published: July 19, 2005

BERLIN, July 18 - In a ruling seen as a sharp blow to coordinated counterterrorism efforts in Europe, Germany's highest court refused Monday to turn over to Spain a citizen suspected of aiding Al Qaeda, arguing that a recent European agreement to streamline extradition procedures violated the rights of German citizens.

The case involves Mamoun Darkazanli, 46, a German of Syrian origin suspected by Spanish authorities and independent experts on terrorism of having provided logistical and financial support to Al Qaeda.

Mr. Darkazanli, who runs a trading company in Germany, is pictured on a videotape at a wedding in Hamburg in 1999 attended by two of the pilot-hijackers in the Sept. 11, 2001, attacks in the United States.

Judge Baltazar Garzón of Spain, using the new European procedure, issued a European warrant against Mr. Darkazanli last year, accusing him of being the "permanent interlocutor and assistant" in Europe for Al Qaeda's leader, Osama bin Laden.

But on Monday the German Constitutional Court declared the law creating the European warrant void, even though it was ratified by the German Parliament in November. The court reasoned that the law infringed on the right of every citizen of Germany, enshrined in its Basic Law, to a court hearing in this country before extradition can take place.

The ruling will surely be seen as a setback in a Europe that has closer coordination to prevent terrorism at the top of the public agenda and is still reeling from the terrorist attacks in London this month.

"He must be set free following this ruling, which is a blow for the government in its efforts and fight against terrorism," said the German justice minister, Brigitte Zypries, referring to Mr. Darkazanli.

Mr. Darkazanli, who was interrogated by German investigators for several months after the Sept. 11 attacks, has denied having engaged in any terrorist activity, saying he was a businessman who knew members of the Qaeda cell in Germany only "by sight."

"The Darkazanli case is very important," said Daniel Keohane, a security expert at the Center for European Reform, in London, "first because it involves an alleged Al Qaeda connection, and second because it raises questions about whether the European arrest warrant can work at all."

The European arrest warrant, enacted by European Union members early in 2002, allows prosecutors in any member country to request extradition of a person accused in any of about 30 areas of criminal activity from another member without bureaucratic delay or restrictions.

"One argument was that in a modern world, where terrorism crosses borders without restrictions, we needed modern methods that would overcome the traditional high national frontiers to law enforcement," said Hugo Brady, a terrorism expert also at the Center for European Reform. "So if a country's authorities issue a European arrest warrant, the person has to be extradited immediately, with very little room for objection."

The German court first stepped into the Darkazanli case in November, blocking the extradition at the 11th hour.

Since then, the court's decision has been awaited as an important test not just of the European warrant but of the larger principle that once the European Union has enacted a law and a member has ratified it, the European law takes priority over national laws, whether in the realm of criminal procedure or agricultural subsidies.

The warrant has been used frequently since it came into general use last year, including in cases involving crimes like drug trafficking, child abuse and war crimes. But the case of Mr. Darkazanli has been a complicated one, in part because German investigators have not come up with sufficient evidence to put him on trial in this country.

In addition, the German courts have long been openly suspicious of European involvement in criminal procedure, contending, as some opponents of the European arrest warrant have argued, that it means in effect that any European Union member's criminal laws become all the members' criminal laws, even if those laws are deemed too harsh or unreasonable.

In an argument that apparently won the sympathy of the German court, Mr. Darkazanli's lawyers contended that if Mr. Darkazanli's actions were deemed lawful in Germany, to extradite him to Spain for the same actions would render this country's criminal laws meaningless.

"It's a dark day for the terrorist hunter," said a German counterterrorism expert, Rolf Tophoven. "We need new laws to fight terror, because otherwise we will create the impression that German law is protecting militant Islamists."
Olantia
19-07-2005, 15:08
COMMENTARY: There have been a number of posts about the Supreme Court of the US on here, but not many about the courts of other nations. This one about the German high court seems to indicate that they can overrule international treties, such as the European Union treaty establishing expedited extradition between member nations.
...
That's really interesting because international treaties are presumed to be supreme to national laws -- I think it is a common trait of all civil law counties.

The Supreme Court of the United States certainly has the power to declare an international treaty unconstituional, although it hasn't occured yet.
Nowoland
19-07-2005, 15:14
Just to clarify one detail:
The German constitutional court didn't rule the EU arrest warrant to be unconstitutional, but the German implementation of that European law.

And rightly, too!
Laerod
19-07-2005, 15:34
COMMENTARY: There have been a number of posts about the Supreme Court of the US on here, but not many about the courts of other nations. This one about the German high court seems to indicate that they can overrule international treties, such as the European Union treaty establishing expedited extradition between member nations.
They didn't. They just overturned the law that was made to handle it. They didn't consider the idea of extradition to other EU members as wrong, but how it was being handled by German law in response to the treaty.
But on Monday the German Constitutional Court declared the law creating the European warrant void...They were referring to the German law and not the international one.
Olantia
19-07-2005, 15:34
Just to clarify one detail:
The German constitutional court didn't rule the EU arrest warrant to be unconstitutional, but the German implementation of that European law.

...
Ah.. that's different, I've missed that detail, supposing instead that Germany is committed to the European warrant by the treaty alone.
Nowoland
19-07-2005, 15:49
Ah.. that's different, I've missed that detail, supposing instead that Germany is committed to the European warrant by the treaty alone.
No, all European laws have to be made into national laws of the member states. If a European law is passed, it doesn't automatically take effect in all the member states. When turning these laws into national laws, the countries have quite a lot of room to manouver.
While Germany just more or less took over the wording of the original European law, Austria honoured the spirit of the law, while at the same time protecting its citizens from unwarranted (!) extraditions.

The effect of the German court ruling is, however, that in Germany the European arrest warrant is not in effect any more, thus all prisoners held under that arrest have to be let go (for the time being).
Fass
19-07-2005, 15:50
Eutrusca, you really should start reading these cut&pasted articles of yours some time.
Olantia
19-07-2005, 15:57
Eutrusca, you really should start reading these cut&pasted articles of yours some time.
The article isn't very clear:

But on Monday the German Constitutional Court declared the law creating the European warrant void, even though it was ratified by the German Parliament in November.

One can infer that the European law, ratified by the German parliament, was found unconstitutional.
Laerod
19-07-2005, 15:58
The article isn't very clear.
Too true. I only know what I know because of German media coverage and interviews with the involved.
Fass
19-07-2005, 16:05
One can infer that the European law, ratified by the German parliament, was found unconstitutional.

Only if one is deeply ignorant of how the ratification process works. With such basic civics in the trunk, the article is quite clear indeed.
Laerod
19-07-2005, 16:07
Only if one is deeply ignorant of how the ratification process works. I'm pretty sure you could name more people that didn't know about that than did.
Olantia
19-07-2005, 16:10
Only if one is deeply ignorant of how the ratification process works. With such basic civics in the trunk, the article is quite clear indeed.
The process of ratification in the US, for example, quite often doesn't require an adoption of an implementing law.
Nowoland
19-07-2005, 16:13
The article isn't very clear:
One can infer that the European law, ratified by the German parliament, was found unconstitutional.
Yep, that's what it sounds like.

It also seems to be widely reported abroad that the German constitutional court dealt a blow for the prosecution of terrorists. That is wrong. It was a slap in the face for the German government. They made a European law into German law without realizing what it actually entailed: Without recourse to a German court a German citizen could be extradited to another European country, even if the crime he's accused of was neither a crime in Germany, nor perpetrated in the country where he was extradited to.

An example: A painter paints a controversial picture. He is being prosecuted in Greece under blasphemy laws (Punishment: up to several year imprisonment), although what he did is not crime in the country, where he painted the picture.
Now under the just repealed German law, he would have to be extradited!
Fortunately for him he was Austrian and they didn't, because they had forseen cases like this one.
Fass
19-07-2005, 16:14
The process of ratification in the US, for example, quite often doesn't require an adoption of an implementing law.

Quite. But this is not about the US, this is about the EU. Assuming that everybody does things like the US does is just silly.
[NS]Ein Deutscher
19-07-2005, 16:16
The article is quite clear - nowhere does it state that the German Constitutional Court decided about the European law. Instead, Eutrusca and others chose to interpret the information given in their own way - which was wrong. Quite easy.
Olantia
19-07-2005, 16:17
Quite. But this is not about the US, this is about the EU. Assuming that everybody does things like the US does is just silly.
Cool it, that's just an example (I am from Russia, BTW). And a lot of (if not 'most of the') countries, recognize 'self-executing' international treaties that do not need implementing legislation.
Laerod
19-07-2005, 16:19
It was a slap in the face for the German government. They made a European law into German law without realizing what it actually entailed: Without recourse to a German court a German citizen could be extradited to another European country, even if the crime he's accused of was neither a crime in Germany, nor perpetrated in the country where he was extradited to.It's not just a slap in the face for the government. The opposition is in it too since the laws were approved of unanimously in the Bundestag and Bundesrat.
Nowoland
19-07-2005, 16:24
It's not just a slap in the face for the government. The opposition is in it too since the laws were approved of unanimously in the Bundestag and Bundesrat.
You're right - it was a slap in the face of German parliamentarians of the whole political spectrum. Quite funny, actually. Reminds me of the day when they had to ratify the European constitution and TV reporters asked PMs about certain points of the constitution and they couldn't answer... because they hadn't even bothered to read it! They voted for the thing without knowing what it was about. Sheesh, I wish I could get away with stuff like that at work!
Laerod
19-07-2005, 16:25
You're right - it was a slap in the face of German parliamentarians of the whole political spectrum. Quite funny, actually. Reminds me of the day when they had to ratify the European constitution and TV reporters asked PMs about certain points of the constitution and they couldn't answer... because they hadn't even bothered to read it! They voted for the thing without knowing what it was about. Sheesh, I wish I could get away with stuff like that at work!It's a big friggin' document. I wouldn't bother reading it, I don't have the time.
Nowoland
19-07-2005, 16:29
It's a big friggin' document. I wouldn't bother reading it, I don't have the time.
I would actually expect them to read it. It is vitally important for the future of Europe. So they should inform themselves what they vote on.
Laerod
19-07-2005, 16:33
I would actually expect them to read it. It is vitally important for the future of Europe. So they should inform themselves what they vote on.The basics got broadcasted on the public channels (don't know about the commercial ones, I don't watch their news broadcasts) quite extensively. But the thing entails about 350 pages of legaleese. I'd crack after some time.
Leonstein
20-07-2005, 00:14
German High Court Blocks Qaeda Suspect's Extradition
Good on them. At least one nation where they leave justice to the judges, and not to the Parliaments.
I get so sick of all those anti-Terror laws. As if they are going to stop anyone.