2. Decision of the Higher Regional Court Nuremberg
The request of the Prosecutor General’s Office for extradition of the persecuted person to Romania for the purpose of execution of the sentence was not granted.
The Nuremberg Higher Regional Court ruled on July 5th, 2017 (File No. 2_Ausl AR 14/17) that the extradition of the persecuted person is not permitted. The extradition warrant has been lifted. The man who was persecuted was immediately released from the Nuremberg prison.
In a similar case, the European Court of Human Rights (ECtHR) had infringed Art. 3 ECHR (Prohibition of torture and inhuman or degrading treatment or punishment), as the detainee had only a proportionate prison space of less than four square metres at his disposal (cf. judgment of 10 June 2014, file no. 51318/12). In Germany, the Federal Constitutional Court even considers a floor area of at least six square metres per prisoner to be the minimum requirement (cf. decision of the Federal Constitutional Court of 22 March 2016, file no. 2 BvR 566/15).
According to the judgment of the European Court of Justice (ECJ) of 05.04.2016 (file no. C-404/15, C-659/15 PPU), the extradition request of an EU member state may be refused if the persecuted person in the member state of the European Union is at risk of inhuman or degrading treatment.
The question of whether such a threat exists must be examined in a two-step procedure:
- First of all, on the basis of objective, reliable, accurate and duly updated information, it should be noted that there are systemic or general deficiencies in the conditions of detention in the requesting Member State, which affect certain categories of persons or certain detention centres.
- If there are factual indications of conditions of imprisonment in the requesting State that are contrary to human rights, the second stage of the examination must clarify which conditions of imprisonment the person being persecuted is to be expected in concrete terms in the event of extradition. Declarations or assurances from the requesting state must be obtained in this respect. If it cannot be ruled out that the person being persecuted will be exposed to a genuine risk of inhuman or degrading treatment in the event of his or her extradition, due to the assurances obtained, extradition is not permitted.
The Nuremberg Higher Regional Court has applied these principles and found that there is no guarantee that the person being prosecuted will find conditions of detention in Romania that meet the requirements of the ECHR and the European Prison Rules. The assurances given by the Romanian authorities were not sufficient to deal with the risk of inhuman or degrading treatment.
The Higher Regional Court of Nuremberg thus adheres to the jurisprudence of most German Higher Regional Courts. Recently, only a decision to the contrary has been known. The Higher Regional Court of Hamburg declared the extradition of a persecuted person to the Republic of Romania to be admissible by order of 3rd January 2017 (file no. Ausl 81/16). The court, after a detailed examination, denied an obstacle to extradition, although poor conditions of imprisonment in Romanian prisons could be ascertained.