Extradition of Maja T.: "Sha­meful for a con­sti­tu­tional state"

The Federal Constitutional Court (BVerfG) has not yet announced the grounds for its verdict to the parties. What is certain, however, is that the First Chamber of the Second Senate decided last Friday that the non-binary person (hereinafter referred to as "they") Maja T. may not be extradited to Hungary.

However, the decision came a few hours too late for T. – the Berlin Public Prosecutor's Office (GenStA) had already handed the 23-year-old over to the Austrian authorities that they could be taken to Hungary. This happened even though Berlin authorities knew that an appeal would be lodged. The circumstances have been discussed in the Committee on Legal Affairs of the Berlin House of Representatives on Wednesday and in the House of Representatives itself on Thursday.

What happened in Hungary

T. was arrested in Berlin in December 2023. The case concerns acts allegedly committed in Hungary in February 2023. At that time, T. is said to have traveled to Budapest with a group of people. The group is reported to have committed a total of five crimes over several days at different crime scenes in different constellations. The Dresden public prosecutor's office has received around 950 hours of video footage from the Hungarians. The videos allegedly show T. during and after the crimes and in an Airbnb apartment. The group is said to have attacked people from the far-right scene with telescopic batons. The alleged perpetrators are classified by the authorities as left-wing extremists. The group is said to have formed around Lina E., who has since been convicted, in Jena.

In November 2023, Hungary issued an European arrest warrant against T. The Local Court Dresden (AG) also issued a national arrest warrant in December 2023. T. was arrested in Berlin in December and immediately taken into custody in Dresden.

The public prosecutor's offices then spent months discussing who had jurisdiction: If T. was arrested based on the national arrest warrant, the AG Dresden would have jurisdiction. If the arrest was made based on the European arrest warrant, it would be the Court of Appeal (KG) in Berlin. The public prosecutor's offices are also always responsible for extradition cases. In addition, the Federal Public Prosecutor General at the Federal Court of Justice (BGH) became involved and investigated the formation of a terrorist organization. It is still not entirely clear whether he waived his jurisdiction or whether this was read into a letter.

Extradition lawyer: "Questions of jurisdiction are irrelevant"

"Ultimately, however, questions of jurisdiction are irrelevant," explains Dr. Nikolaos Gazeas from the Cologne-based law firm Gezeas Nepomuck. Even violations of the provisions of Section 14 of the German Act on International Legal Assistance in Criminal Matters (IRG) would not render the official acts unlawful as long as the authorities did not act arbitrarily. The question of jurisdiction had no effect on the proceedings.

In general, extradition requests such as the one from Hungary for such serious crimes are not subject to much scrutiny. According to Gazeas, the decisive factor is that the extradition request exists, the accusation of crimes – in T.'s case, membership in a criminal organization and dangerous bodily harm – is in question and there are no obstacles to extradition.

T.'s lawyers – Maik Elster and Sven Richwin – had argued in detail, but unsuccessfully, before the court that there were obstacles to extradition. Hungary has been criticized in recent years with regard to the rule of law and prison conditions. Until a few years ago, disputes over extraditions to the country went all the way to the European Court of Justice (ECJ). In the case of one Hungarian, the extradition was ultimately deemed lawful (ECJ, judgment of 25.07.2018, Case No. C-220/18C); member states must be able to rely on assurances regarding the conditions of detention. Even during T.'s extradition proceedings, human rights organizations doubted whether this could also apply to critics of the government, which can be classified as more right-wing.

From Gazeas' point of view, however, the real "scandal" lies in the actions of the GenStA.

The chronological sequence

On Thursday, June 27, the KG declared the extradition of T. admissible. According to the lawyers, they received this information at 5.26 pm on the same day. Lawyer Elster then received a call in the middle of the night at around 3 a.m. that the transfer had begun. The lawyers told LTO that they had informed the officials that they would be filing further appeals. At this stage, the only option is to lodge a constitutional complaint with the Federal Constitutional Court (BVerfG) and apply for a preliminary injunction.

The officials continued the transfer and handed T. over to the Austrian authorities at 6.50 a.m. on Friday morning for transit to Hungary, the GenStA announced. At 7.38 a.m., the BVerfG received the application for a preliminary injunction and informed the GenStA Berlin by telephone at around 8.30 a.m.

The decision of the BVerfG was issued at around 10.50 a.m., and the BVerfG also informed the GenStA and T.'s lawyer at around 11 a.m. By then, however, it was already too late for T.: the GenStA Berlin informed the BVerfG by e-mail at 11.47 a.m. that T. had already been handed over to the Hungarian authorities at 10 a.m.

GenStA declares the matter closed

The decision of the BVerfG reads verbatim (translated to English): "The extradition of the applicant to the Hungarian authorities is temporarily prohibited until the decision on the constitutional complaint yet to be lodged, for a maximum period of six weeks." And further: "The GenStA Berlin is instructed to take appropriate measures to prevent the applicant from being handed over to the Hungarian authorities and to obtain their return to the Federal Republic of Germany."

In a separate press release on Friday, the GenStA stated that T. was no longer in Germany when it was informed of the urgent application to the BVerfG. Therefore, the GenStA no longer had any legal option to stop the further execution of the extradition.

And further: "The Public Prosecutor General's Office in Berlin can no longer comply with the preliminary injunction because the preliminary injunction [...] decided at 10.50 a.m. has now been discharged by the [...] handover [...] to the Hungarian authorities. The 'handover' could no longer be 'prevented'. A mandate to the Berlin Public Prosecutor General's Office to obtain the return from the Republic of Hungary cannot be inferred from the preliminary injunction."

The Austrian authorities had also carried out the extradition at the request of the Hungarian authorities and not at the request of the German authorities. Such a request could therefore not have been withdrawn by the GenStA Berlin. "From this side, the execution of the extradition was completed with the handover of Maja T. to the Austrian authorities."

The GenStA also stated that it had asked the BVerfG to indicate whether the Senate shared the legal opinion of the GenStA Berlin that the preliminary injunction had become obsolete.

The BVerfG then informed the GenStA and T.'s lawyers that "a judicial reference to the letter from the GenstStA does not appear to be necessary". The parties are currently not commenting on whether this wording indicates that the matter has actually been settled or whether the BVerfG's order is so clear that no further reference is required.

Extradition lawyers criticize "cloak-and-dagger operation"

Kai Peters, a lawyer at Ignor & Partner in Berlin, explained to LTO that T. was apparently transferred to Austria based on a so-called extradition request. As this request was allegedly made by Hungary to Austria and approved by the latter, German authorities could no longer have achieved anything from this point onwards. This is because the approval of a request for extradition establishes an individual treaty under international law, which would have been violated by Austria in the event of a transfer back to Germany.

"The action of the German authorities was therefore possibly not unlawful, but obviously orchestrated over a long period of time in order to exploit the fact that the German extradition procedure does not provide for a legal remedy", said the Berlin lawyer. "Since a constitutional complaint was certainly to be expected, this is not worthy of a constitutional state."

This is also the view of lawyer Gazeas. For him, "the way in which the extradition was carried out in a cloak-and-dagger operation immediately after the KG's decision is not only strange, but also unlawful in view of the appeal to the Federal Constitutional Court that is clearly expected," the lawyer told LTO. "I am familiar with such a procedure from states such as Russia and Iran, but not from a constitutional state. The procedure is shameful."

Extraordinary appeals to the Federal Constitutional Court have almost become standard in extradition cases because the law does not allow any further ordinary appeal against the decision. "The competent general public prosecutor's offices are of course aware of this, as are the police authorities responsible for extraditions", says Gazeas. "I cannot assess the procedure in the T. case as anything other than the – ultimately successful – attempt to immediately enforce a court decision that has been issued in accordance with the GenStA before the BVerfG puts a spoke in the wheel. There is no other way to explain why, in a case in which the arrest took place in December 2023 and the admissibility decision on extradition only six months later, there should have been so much time pressure that extradition should have begun within hours," the lawyer said. In his view, "the conduct of the Public Prosecutor General's Office should not only be declared unlawful when viewed in the light of day but should also have consequences".

Felor Badenberg: "No reason to doubt the 'routine proceedings'"

Will there be consequences? The Greens have now brought the issue to the House of Representatives. "Hungary is an openly queer-hostile state and the authorities knew that there would be an urgent application to the Federal Constitutional Court against the extradition," said Sebastian Walter, queer policy spokesperson for the Greens, to the dpa. "We therefore wonder why there was this sudden rush overnight, for which we are not aware of any comparable cases."

Berlin's Senator for Justice Felor Badenberg said in the House of Representatives that the "routine proceedings" had "proceeded without any objections". There was "no reason to doubt the GenStA's actions". She does not assume that the BVerfG has instructed the GenStA to bring Maja T. back to Germany. Therefore, in her view, there is also no reason to take any action. According to Badenberg, Hungary had also given assurances that T. would not have to fear any anti-queer discrimination.

With material from dpa

This text is a translated and slightly revised version of the article published in German on 3 July 2024.