ECtHR – European Court of Human Rights

What is the ECtHR?

The European Court of Human Rights (ECtHR) in Strasbourg is the supervisory body of the European Convention on Human Rights (ECHR). It decides on individual applications under Article 34 ECHR once the applicants have exhausted all domestic remedies.

Significance for extradition law

In extradition law the ECtHR is of central importance, because it can determine whether an extradition violates the ECHR. The relevant standards are, in particular, Article 3 ECHR (prohibition of torture, inhuman treatment), Article 5 ECHR (deprivation of liberty) and Article 6 ECHR (fair trial). A state that extradites someone to a third country can be held responsible for the foreseeable violations of the Convention in the receiving state — the so-called prohibition of refoulement.

Interim measures (Rule 39)

Of particular practical relevance is the possibility of applying to the ECtHR for interim relief under Rule 39 of the Rules of Court. The Court can direct a member state to suspend an extradition provisionally until it has examined the case. In urgent cases these measures are issued within hours and must be complied with by the member states.

Leading decisions on extradition

The foundation is the Soering judgment (1989): the ECtHR held that extraditing the applicant to the USA would violate Article 3 ECHR because of the threatened death penalty and the long wait on death row. Since then, this principle has been developed further in a large number of decisions concerning detention conditions, political persecution and inhuman treatment.

Relationship to the German judiciary

German courts — in particular the Higher Regional Courts (Oberlandesgerichte, OLG) and the Federal Constitutional Court (Bundesverfassungsgericht, BVerfG) — are required to take ECtHR case law into account when reviewing extradition requests. In Germany the ECHR is domestic law with the rank of an ordinary federal statute, but it has reinforced effect through the Basic Law. Breaches of ECtHR orders can lead to infringement proceedings.

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