Extradition between Germany and the United Kingdom after Brexit

In the case of extradition, the nationality of the person concerned is particularly decisive. Germany, for example, does not extradite German citizens to third countries. Since Brexit, the United Kingdom has been a third country. According to the German Federal Ministry of Justice, German citizens may only be extradited to other EU states following Article 16 of the German Basic Law (GG) and, therefore, no longer to the United Kingdom.

However, suspected offenders who are nationals of a third country may continue to be extradited to the United Kingdom under the extradition provisions now in force. Concerning EU citizens, the same provisions apply as are generally applicable to the extradition of EU citizens to third countries. More information on the extradition of EU citizens can be found here.

Germany is not the only country to take this step and no longer extradite its citizens to the UK. Other countries have already told the European Commission that continuing the current arrangement after Brexit would violate their respective constitutions. In general, countries are reluctant to extradite their nationals, as the extradition case of Carlos Ghosn shows. Other EU countries have national laws similar to Germany that prevent the extradition of their citizens to non-EU member states.

In response, the UK stated that it expected the member states concerned to conduct the respective criminal proceedings themselves.

German law only prevents the state from extraditing its nationals to third countries but not from conducting the proceedings itself. Accordingly, German citizens could expect criminal proceedings in Germany instead of extradition to the United Kingdom.

Extradition between Germany and the United Kingdom was carried out before Brexit as part of criminal prosecution within the European Union. The European Arrest Warrant offers all member states the possibility to request the judicial authority of another state to arrest and surrender a suspect. The European Arrest Warrant is based on the principle of mutual recognition of judicial decisions. Since its introduction by the EU Framework Decision of 13 June 2002, it has offered the EU states numerous advantages compared to conventional extradition procedures, such as faster and simplified implementation.

By leaving the EU, however, the United Kingdom is now cut off from the Schengen Information System (SIS II) and the Europol databases. The rules on the European Arrest Warrant will also no longer apply. This means that the foundations of joint European criminal prosecution concerning the United Kingdom are no longer in force, and simplified criminal prosecution based on them is no longer possible. Additional agreements between the EU and the United Kingdom now regulate this to enable close cooperation between law enforcement authorities.

For example, the UK is still entitled to be part of important European information systems. It continues to participate in the automated data comparison and information exchange of fingerprints, vehicle licence plates, passenger name records and DNA traces between the contracting states. In addition, the UK will continue to have access to the European Criminal Records Information System (ECRIS), which enables public prosecutors and courts to retrieve information on criminal convictions in another EU country.

The only special rule that applies to the UK compared to other EU states is that the time limit within which a request must be executed has been doubled to 20 days for the UK, which means that EU states have to respond to requests from UK law enforcement authorities less quickly than other member states.

As the European Arrest Warrant no longer applies to the United Kingdom, new provisions must also be issued for extradition requests. Since Brexit, the exchange of international arrest warrants will be compensated for by strengthening cooperation with Interpol. However, it should be noted that not all EU member states use Interpol to the same extent and that subsequent extradition is not carried out by Interpol but by the respective regulations between the states. Cooperation via Interpol is, therefore, not comparable to the close cooperation between EU Member States based on EU law.

Before the United Kingdom joined the European Union in 1963, it was already a member of the Council of Europe and, therefore, also a member of the Council of Europe’s Extradition Convention. As the Council of Europe is independent of the European Union, the United Kingdom remains a member. Like the other EU member states, Germany is also a member of the Council of Europe. Should the United Kingdom request the extradition of a person in Germany, the handling of this request has been governed by the Council of Europe’s Extradition Convention since 1 January 2021.

In addition, the “Trade and Cooperation Agreement” contains a special agreement for extraditions. It includes provisions that can be applied if the offence of which the wanted person is accused is punishable by a custodial sentence of at least 12 months. The Article Law. Surr. 79 defines the scope of application of this particular agreement in more detail.

Like the European Arrest Warrant, it contains a list of offences in which cooperation is possible. It also includes further provisions on the cases in which simplified extradition cannot occur. This is the case, for example, if the offence is covered by amnesia or if a person has already been punished for the crime in question.