CITIZENSHIP
CITIZENSHIP ................................................................................................................................................ 1
Germany ......................................................................................................................................................... 1
29 BVerfGE 183 (1970) ......................................................................................................................... 1
NAMIBIA ...................................................................................................................................................... 3
Alberts v Government of Namibia & Another 1993 NR 85 (HC): legislation depriving people
serving in foreign forces of their citizenship ........................................................................................... 3
Germany
GBL Article 16.1.
No one may be deprived of his German citizenship. Loss of citizenship may arise only pursuant to a law,
and against the will of the affected only if such person does not thereby become stateless.
GBL Article 16.2.
No German may be extradited to a foreign country. Persons persecuted on political grounds shall enjoy the
right of asylum.
29 BVerfGE 183 (1970)
{Translator=s Note:
A meaningful translation of this case requires the definition of some terms. The German word for
extradition is Auslieferung and I used the word extradition accordingly. The German word Ruecklieferung
describes an extradition of a person back to country A by country B after that person was temporarily
extradited by country A to country B. I translated Ruecklieferung with return-extradition. The term
Ueberstellung generally means transfer or handing over of a person from one country to another.}
[Facts:
The petitioner in this case is a German citizen. He had been sentenced to six years of prison in Austria.
Before he commenced to serve his six year term in Austria, he was temporarily extradited to Germany with
the condition that he would be return-extradited by the German authorities to Austria. The purpose of the
temporary extradition to Germany was to complete two pending criminal trials in Germany against the
petitioner. He was found not guilty in both cases. The return extradition procedure was provided for by
Article 22 of the German-Austrian extradition treaty (deutsch-oesterreichscher Auslieferungsvertrag,
hereinafter ET).
The High Court of Appeals in Celle issued a decree on March 5, 1970 ordering the return-extradition of the
petitioners. The petitioner challenged that decree but the High Court of Appeals rejected the challenge on
April 3, 1970, arguing that Germany had a contractual duty to return-extradite the petitioner.
Petitioner then filed several constitutional complaints. Among other things, petitioner challenged the
constitutionality of the April 3 decision of the High Court of Appeals. In particular, he claimed a violation
of his basic right as guaranteed by Article 16.2. first sentence of the Basic Law.
Issue:
Is a return-extradition following a temporary extradition of a German citizen pursuant a treaty in violation
of Article 16.2. first sentence of the Basic Law?
Holding by the First Senate:
No, it is not.
Discussion:
First the Federal Constitutional Court finds the constitutional complaints permissible.]
C.
The constitutional complaints are however unjustified. The challenged decisions [of the High Court of
Appeals] violate neither the basic rights of petitioner from Article 16.2. first sentence, Article 2.2. second
sentence, and Article 104.1. and 104.2. of the Basic Law, nor any other basic rights.
I.
1. The challenged decisions directly encroach upon the protective sphere of Article 16.2. first sentence of
the Basic Law...
2. a) For the question whether a return-extradition has to be treated as an extradition within the meaning of
Article 16.2. first sentence of the Basic Law and therefore is impermissible, neither the wording of the
constitutional clause, nor the systemic interrelation with other norms, nor the legislative history [provide
any insights].
Article 16. of the Basic Law does not include a definition of extradition and also does not describe the
course of events that is to be understood as extradition. The combination with questions of citizenship and
asylum in the same Article probably allows the conclusion that German citizens in their status as members
of the state (staatsbuergerlicher Status) were to be protected in particular from persecution abroad; the
scope of the protective norm in particular, however, can neither be derived from the interrelation [with the
other parts of Article 16.] nor with the interrelation with any other basic rights norms.
The same holds for the legislative history. In the course of the debates of the Parliamentary Council
(Parlamentarischer Rat) the prohibition of extradition was debated and altered several times. This
discussion, however, only concerned the questions what is to be understood as foreign country, whether the
prohibition shall be included at all, and whether it should be mentioned that only the extradition with the
purpose of Aprosecution and punishment@ is impermissible (*).
[The court next analyzed in great detail whether legal history provides a fixed definition of the term
extradition. It surveyed legal literature and precedents of the entire century. The conclusion of this lengthy
part was that no fixed definition of the term extradition existed.]
3. After all this the interpretation of Article 16.2. first sentence of the Basic Law with respect to returnextradition cannot depart from a fixed legal norm [which was incorporated into the Basic Law by the
founding fathers]. In contrast, [the interpretation] must commence with a comparative analysis of the two
events to be interpreted, Aextradition@ and Areturn-extradition@, and then consider the meaning and
purpose of the prohibition of extradition.
a) An extradition is essentially a handing over of the affected [person] to foreign authorities of criminal
prosecution [with the aim] to complete criminal proceedings there or to execute a sentence. In contrast, a
return-extradition is merely a necessary and dependent part of an entire course of events which is
commenced by the temporary extradition. Without the temporary extradition a return-extradition cannot
occur. Therefore this necessarily united course of events (zusammengehoeriger Vorgang) cannot be
separated for the purpose of legal examination in a way that the constitutionality is reviewed for each part in
isolation. Accordingly, to be contrasted are not extradition and return-extradition, but extradition and
temporary extradition with following return-extradition; the sole concern here are cases of temporary
handing over to Germany...
b) Meaning and purpose of the prohibition of extradition do not stand in the way of a return-extradition,
which merely is a consequence of the temporary handing over. The prohibition of extradition rests
according to its basic idea on the right of every citizen to be permitted to stay in his home-country
(Heimatland), and on the duty of [the home-country] to protect in every way the citizens living within the
territory. To this [duty] belongs in particular that [the state] protects [its citizens] from being compulsorily
transferred to a foreign national jurisdiction and put to trial there. This principle however only applies to the
Federal Republic of Germany [by the stipulation of its] constitutional law (*). In the German legal sphere,
[this principle], after some old particularistic regulations, found its first legal expression [in Section 9 of
Criminal Code of the Reich, then in Article 112.3. of the Weimar Constitution and Article 16.2. first
sentence of the Basic Law.]
The older as well as the newer provisions themselves offer no insights as to the motive for their coming into
being. Their purpose however is not to remove the affected person from a just punishment, in contrast [their
purpose is] to save [the affected person]--as far as he lives within the national territory--from the insecurities
of a sentencing under a legal system [unfamiliar to the accused] and under circumstances [which for the
accused are] difficult to comprehend. Further-reaching conclusions, such as [the right to demand]
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exclusively German penal authority for criminal offenses of Germans abroad, are not being drawn from the
prohibition of extradition.
In particular, it is not the point of the prohibition of extradition to render more difficult the own German
criminal prosecution. However, [a prohibition of extradition would amount to such an obstruction] if a
return-extradition were impermissible. Extradition is not being demanded in minor cases, in contrast [it is
only being demanded] in cases of some significance. Temporary extradition with following returnextradition is only being considered when also abroad a significant sentence against the persecuted is to be
expected or has already been handed down. Especially in cases of severe crime, a renunciation of temporary
handing over would cause the danger that later [the crimes] would not be solvable anymore. This aspect
however could not lead to a limitation of the prohibition of extradition [which] is fixed in scope. [This
aspect] may however be used to interpret a constitutional term such as extradition [which] by itself cannot
be sharply delimited taking into consideration the system of the constitution [and its] remaining content. For
the effective solving of severe crimes in particular is an essential task of a community state based on the
rule of law (rechtsstaatliches Gemeinwesen) which in a case of conflict can also be taken into consideration
in the interpretation of a basic right.
In contrast, the affected [person] does not loose anything by the temporary extradition from his right to be
protected by his home-country. If a return-extradition were prohibited, [the affected person] would be
[subject to the foreign authorities in the same manner]. Only the maintenance of German criminal
prosecution would possibly be endangered because criminal proceeding[s] in many cases could not be
brought to a solution. Neither a general contractual agreement with another state, nor the request for a
temporary extradition conditioned on the later return-extradition, nor the execution of this return-extradition
therefore violate Article 16.2. first sentence of the Basic Law.
This result also is in accord with the precedent put forth by the petitioner (*). In that case the affected
person was not already within the national jurisdiction of the Austrian state which prosecuted him. The
Federal Republic of Germany was therefore not permitted to participate [in the transfer of the affected
person to the Austrian] national jurisdiction. In the current case in contrast the petitioner was already validly
sentenced in Austria; also before the handing over he was within Austrian national jurisdiction...
[signed by all eight Judges]
NAMIBIA
Alberts v Government of Namibia & Another 1993 NR 85 (HC): legislation
depriving people serving in foreign forces of their citizenship
Article 8(4)(b) of constitution providing that government can enact legislation
depriving people serving in foreign forces of their citizenship. Provisio to the art.
is that citizen by birth cannot be deprived of citizenship and the enacted
legislation did not have that effect. Government cannot redefine citizenship by
way of policy decisions.
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