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German EU-extradition law invalidated, terror suspect walks

Posted by Thomas Nephew on July 19th, 2005

Suspected Al Qaeda kingpin Mamoun Darkazanli, a Syrian-German residing in the Hamburg area, has avoided extradition to Spain to stand trial for involvement in the 3/11/2004 Madrid attacks. He was immediately released from jail yesterday. The development followed a German Supreme Court (Verfassungsgericht, lit.constitutional court) decision invalidating a recently enacted German law authorizing his incarceration.

The law was designed to implement a European Union agreement requiring member countries to honor eachother’s arrest warrants via extradition. The “EU arrest warrant” [EU-Haftbefehl] was intended to make it easier to combat international terrorism and the drug trade across the many borders within the European Union — borders which are open to trade and tourism, but still define widely differing legal systems.

The German court could have potentially seen the German cooperation with (or acquiescence to) to the EU law as unconstitutional in and of itself, but pointedly did not do so, opting instead to require clearer guidelines about when extradition would and would not occur. Writing for the German newsweekly SPIEGEL, Mathias Gebauer reports:

The judges demand that legislators protect all Germans’ rights with an improved law supporting the EU-arrest warrant agreement. They did not call the idea of the EU law into question. They also did not consider national sovereignty damaged by it. The EU framework decision was only to be sparingly and proportionately implemented. In short: the idea is OK, its implementation was poor.

The judges provided the most important features of a revised law. Extraditions may not occur if there is a strong domestic connection to the alleged crimes. Conversely, someone who who is mainly punishable abroad may be subject to foreign criminal and trial law. The judges emphasized, that the foreign connection [Auslandbezug] was “also and especially assumed” “if the deed had a typically cross-border dimension from the outset,” such as in cases of drug trade or participation in international terrorism.

Looking on from the outside, it’s doubly annoying that the Darkazanli case seems to have fit all of these restrictions, even if the flawed law did not. Gebauer:

Darkazanli’s freedom is bitter for the government. The Hamburg businessman would presumably already be behind bars under new security laws passed by the Red [SPD]-Green coalition. But old deeds or proofs don’t suffice for the still freshly drafted Paragraph 129b, which makes membership in a terror network like Al Qaeda punishable since August 2002. And new proof has not turned up, despite long and intensive surveillance of the suspect by officials.

But the high court judges’ briefs were more about the general constitutionality of the law than about the particular case. Their verdict had the potential to put even more strain on EU integration, already under pressure following recent rejections of the proposed EU constitution in France and the Netherlands. While they largely ducked a head-on challenge, the judges did set some limits. Also writing for SPIEGEL, Dietmar Hipp reports:

Germany has “not surrendered nonnegotiable principles” in European cooperation until now, [chief justice] Hassemer said in delivering the verdict: even the “restriction of the formerly absolute proscription against extraditing Germans” does not lead to a “desovereignization [Entstaatlichung]” of the national legal system. So far, so good for Europe.

But the verdict specifically mentions two points, that could be a step too far on the path to Europe: the one would be if national citizenship is “surrendered,” “substantially devalued,” or “replaced with European citizenship,”; the other would be if the EU were to envision a “general harmonization of the legal systems of the member states.”

One may wish German legislators had gotten their extradition law right the first time. But then one may also wish the U.S. Congress or the U.S. courts were half as zealous as this German high court in preventing “extraordinary renditions” to other countries.

Darkazanli’s release is a galling setback. Gebauer reports that Darkazanli knew two of the 9/11 hijackers, and was the representative of convicted Al Qaeda treasurer Mamduh Mahmud Salim for a Deutsche Bank account, from which he was empowered to draw funds. He is also said to have purchased the freighter “Jennifer” for Osama Bin Laden in 1993. Evidence like this could now put someone behind bars in Germany under “Paragraph 129b,” enacted in 2002, but no new evidence or developments in Germany could be held against Darkazanli since then. It will apparently take another German “act of Congress” — i.e., revising that extradition law — before Darkazanli will finally face justice.

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