The Federal Constitutional Court provisionally prohibits the surrender of a requested person to Romania for up to six months. It must still be clarified whether the Higher Regional Court of Munich observed its duty of inquiry under Art. 4 CFR when it based the surrender on a nearly two-year-old, generically worded assurance of 29 April 2024.
A “cross-procedural” and merely generic assurance on prison conditions — one that identifies neither an individual nor specific detention facilities — loses persuasive force as time passes. Where a court nonetheless bases the admissibility of a surrender on such an assurance without engaging with submissions pointing to persisting deficiencies, doubts arise as to whether it has adequately observed the duty of inquiry flowing from Art. 4 of the Charter of Fundamental Rights of the European Union (CFR).
What the case was about
The proceedings concerned the surrender of a requested person for the enforcement of a sentence on the basis of a European Arrest Warrant. By order of 16 February 2026, the Higher Regional Court (Oberlandesgericht, OLG) of Munich had declared the surrender to Romania admissible. In doing so it relied, as a load-bearing element, on an assurance given by the Romanian authorities on 29 April 2024 — an assurance that, by the time of the decision, was already nearly two years old. The constitutional complaint, combined with an application for interim relief, was directed against that order.
The decision
The 1st Chamber of the Second Senate provisionally prohibited the surrender. The operative part reads: “The surrender of the complainant to the Romanian authorities is provisionally prohibited until the decision on the constitutional complaint, but for a maximum of six months.” The Munich General Public Prosecutor’s Office (Generalstaatsanwaltschaft) was instructed to carry out the order and to prevent any surrender by appropriate measures.
The reasoning
In the Chamber’s view, further constitutional review is required as to “whether the Higher Regional Court, in its order of 16 February 2026 declaring the surrender admissible, sufficiently observed the meaning and scope of Art. 4 CFR and the associated duties of inquiry regarding the prison conditions awaiting the complainant in Romania.” In particular, it must be clarified whether the court “established a sufficient factual basis on which it could assume the reliability of this assurance.”
The Chamber’s concerns arise above all from the time that has elapsed since the assurance was given and from its cross-procedural, generic wording, which specifies neither an individual nor any detention facilities — and this against the backdrop that the complainant had pointed to general deficiencies in Romanian prison conditions persisting after 29 April 2024 as well.
The weighing of consequences required under § 32(1) BVerfGG came out in the complainant’s favour: the consequences of a surrender that might later prove unlawful weighed more heavily than those of an interim prohibition. For if the surrender were carried out, the complainant would “in all likelihood no longer be able to successfully assert his objections to the surrender.” The Chamber thereby aligns itself with the case law of the Court of Justice of the European Union on judicial deficiencies and detention conditions (LM, C-216/18 PPU; ML, C-220/18 PPU; Dorobantu, C-128/18) and relies on Art. 4 CFR, Art. 6 TEU and § 32(1) and § 93(1) sentence 1 BVerfGG.
Significance for practice
The order continues the line of authority on the inquiry duties of the ordinary courts where a violation of Art. 4 CFR is threatened (cf. BVerfGE 156, 182 — Romania II) and puts its finger on a widespread weak point: the “cross-procedural,” generically issued assurance, which is formulated in the abstract rather than for the specific case and loses persuasive force as time passes. Three factors move to the centre of the reliability assessment:
- Currency — how much time has elapsed since the assurance was given?
- Specificity — does the assurance identify the person concerned and the specific detention facility?
- Engagement with contrary submissions — are documented, persisting deficiencies in detention conditions taken into account?
The decision is closely connected to the subsequent order of the Higher Regional Court of Schleswig on Poland (1 OAus 10/26): both require — even for EU Member States — concrete, individual, facility-specific safeguards rather than blanket assurances.
It is worth making targeted submissions on detention conditions whose deficiencies are documented after the date of the assurance, as well as on the assurance’s failure to specify the person and the detention facility. The older and more generic an assurance, the easier it is to undermine its reliability — and the more likely the Federal Constitutional Court is to intervene in interim proceedings under § 32 BVerfGG where the ordinary court has failed to satisfy the duty of inquiry under Art. 4 CFR.
Citation: BVerfG, Order of 26 February 2026 — 2 BvR 364/26.
Source: Full text at bundesverfassungsgericht.de (Decisions 2026).
Note: Interim order; a decision on the merits is still pending.