Al-Qaeda Suspect Free Because German Constitution Overrules European Act

The German Constitutional Court, the Bundesverfassungsgericht, decided today that the European Arrest Warrant Act of 2002,  which replaced the various national extradition systems by a unified European one, is incompatible with the German Constitution. According to the Bundesverfassungsgericht the German Constitution overrules European Union legislation. Consequently a German citizen cannot be extradited automatically to other EU member states to be taken to court there, but is entitled to a verdict by German courts.

Germany did not allow its citizens to vote in a referendum on the recent European Constitution but had its parliament approve it, despite indications that the German voters were as sceptical about the EU Constitution as the French and the Dutch who recently rejected it. In a sense the German supreme court has now followed the lead of the French and Dutch popular vote, by asserting national supremacy over EU legislation.

As a result of the supreme court’s decision, however, Mamoun Darkazanli, a German of Syrian origin who was awaiting extradition to Spain, was released today by the German authorities. Darkazanli is a 46-year old Hamburg businessman who has been accused by the Spanish judiciary of providing logistic and financial support for al-Qaeda units in Germany, Spain and Britain. The United States also suspects him of involvement in the September 11, 2001 crimes.

In a press release (in English) today the Bundesverfassungsgericht states that the European Arrest Warrant Act is an infringement of the German Constitution because the latter entitles German citizens to a “special association with the legal system that is established by them. It is commensurate with the citizen’s relation to a free democratic polity that the citizen may, as a matter of principle, not be excluded from this association. […] Whoever, as a German, commits a criminal offence in his or her own legal area need, in principle, not fear extradition to another state power.” This rule can be restricted by law, but only if there is a “possibility of challenging the judicial decision that grants extradition.” The European Arrest Warrant Act does not allow appeal to a national court against the extradition to an EU member state. Therefore, “it encroaches upon the freedom from extradition in a disproportionate manner,” which renders it invalid in Germany.

Extradition versus Arrest Warrent

Sorry to question this but there a couple of points that need to be made clear.
Firstly the German Constitution has long understood itself to be superior to EU law. Then there is a qualatitive difference between the standard of evidence required for extradition - which the Spanish authorities did not call for - and that required for the use of the European Arrest Warrent. Suspicion is not enough, nor should it be. After all if I had a general and voiced dislike of foriegners, and some continental legal types took a dislike to me I could be hauled in front of the London beak and shipped elsewhere for an offence that does not exist under English law.

To my mind the only sadness is that Germany is the only country that has the confidence to ensure that it's body of law is superiorto the aquis communitaire rather than the other way round.