G.

Court	Bundesverfassungsgericht / Federal Constitution Court, Germany
Case number	2 BvR 685/03
Decision title	Order of the Second Senate of 24 June 2003
Decision date	24 June 2003
Parties	G.
Categories	Torture
Keywords	Extradition; judicial cooperation; torture
Links	Order (in German) Order (in English)
Other countries involved	India

Summary

The accused, Mr. G., was a citizen of Vanuatu Islands, while he previously resided in India. An arrest warrant was issued against him by the First Special Court in Alipore, Kolkata (India) on allegations of stealing 108,400,000 Indian Rupees (approximately € 2,143,000) from the Allahabad Bank in 1994 and 1995. G. was arrested at Munich Airport on 15 December 2002.

On 30 April 2003, the Munich Higher Regional Court approved the extradition of G. to India because there was no risk that he would not be treated in accordance with international standards, more specifically, that he would not be subjected to torture or ill-treatment. In addition, the Court held that the expected punishment of life imprisonment was not ‘absolutely unreasonable’ having in mind the amount of money stolen by Mr. G.

The Federal Constitutional Court upheld the decision to extradite G. to India, in particular because there was no evidence suggesting that he would be subjected to torture.

Procedural history

On 3 May 2002, the First Special Court in Alipore, Kolkata (India), issued an arrest warrant against Mr. G., a former Indian citizen. In the arrest warrant, the accused was charged of having obtained by fraudulent means 108,400,000 Indian Rupees (approximately € 2,143,000) from the Allahabad Bank in 1994 and 1995. G. was arrested on 15 December 2002 at Munich airport.

On 31 January 2003, the Indian Foreign Office requested the extradition of the accused for the purpose of criminal proceedings in application of a bilateral extradition treaty signed by India and Germany in 2001.

On 7 March 2003, the Oberlandesgericht München declared the extradition admissible.

On 13 March 2003, G. entered a formal objection and also made a motion for a temporary injunction before the Federal Constitutional Court.

On 4 April 2003, the Munich Higher Regional Court held that in case of extradition, G. was ‘not in danger of being subjected to torture or other cruel or degrading treatment’.

The First Chamber of the Second Senate of the Federal Constitutional Court denied the motion for a temporary injunction on 7 April 2003.

On 23 April 2003, G. applied for the extradition to be declared inadmissible by arguing that he was in danger of being subjected to torture and cruel, inhuman or degrading treatment once extradited to India.

On 30 April 2003, the Munich Higher Regional Court again declared G.’s extradition admissible. The Court held that G.’s extradition would not infringe any principles of the German legal order. Moreover, it stated that torture as a method of interrogation was not tolerated but instead combated in India, and that there was no evidence indicating that G. would be subjected to torture. Lastly, the Court held that the impending sanctions in India could not be qualified as an “unbearably severe punishment” for the offences with which he was charged.

On 5 May 2003, G. filed a constitutional complaint and another motion for a temporary injunction. G. alleged that in case of extradition his fundamental rights enshrined in the German Basic Law would be violated. Thereby he referred to a 2001 report of the German Foreign Office and a 2003 report of Amnesty International, both mentioning frequent incidents of torture and ill-treatment during police interrogations in India, and which also stated that many detainees in India are held in inhumane conditions amounting to cruel, inhuman or degrading treatment.

Legally relevant facts

The extradition of the accused was requested on the basis of the German-Indian Extradition Treaty of 27 June 2001.

Core legal questions

Did the Munich Higher Regional Court err in allowing the extradition of the accused?

Did the Munich Higher Regional Court err in holding that there is no risk of torture?

Did the Munich Higher Regional Court err in holding that the punishment of life imprisonment is not ‘absolutely unreasonable’ for the particular crimes?

Specific legal rules and provisions

Basic Law for the Federal Republic of Germany, 1949:

Article 1 - Human dignity – Human rights – Legally binding force of basic rights
Article 2.2 - Personal freedoms
Article 3.1 - Equality before the law (prohibition of arbitrariness)
Article 25 - Primacy of international law

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984, UN General Assembly:

Article 3 - Extradition

Court's holding and analysis

On 24 June 2003, the Bundesverfassungsgericht(Federal Constitutional Court) delivered its judgment.

The Court declared that the constitutional complaint could not be admitted because it failed to meet the admissibility requirements, the issue had already been dealt with in constitutional case-law, and it did not seek to enforce the rights whose violation was alleged (para. 28).

Furthermore, the Court stated that according to the constitutional standard of review, several factors need to be taken into account in examining requests for extradition. These include compatibility with the minimum standard under international law, the inalienable constitutional principles of public policy, and the principle of proportionality (paras. 29-30). In respect of the latter factor, the Court held that extradition should be refused if the expected punishment would be ‘absolutely unreasonable’ or ‘cruel, inhuman or degrading’ (para. 30). A ‘very harsh’ punishment’, however, was found not to be a valid ground for refusal (para. 31).

On the basis of the constitutional standard of review, the Court stated that the holding of the Munich Higher Regional Court that there was no risk of torture, was not arbitrary because G. ‘was not in specific danger of being subjected to torture’, and the use of torture as interrogation method was ‘certainly not normal practice but of an exceptional nature’ (paras. 40-42).

Accordingly, the Court affirmed G.’s extradition but also emphasised that the German government will observe the proceedings in India through its diplomatic missions (para. 47).