After three and a half years of challenging debates and negations, many headlines and controversies, Brexit is now official. With the transition from January to February 20202, the United Kingdom has left the European Union. No country in the history of the European project has ever taken this step, and we are now in uncharted waters. The normal state of affairs for business and in the law looks like relics of the past unless the conclusion of the transition period brings significant changes. This transition period is set to last until the end of 2020.

It is still difficult to predict the exact outcome of Brexit as there are still many aspects to be negotiated. This article will examine how Brexit might affect or what changes it might lead to in the extradition process. This article will outline some of the decisions made and discuss the legal reasoning.

Extradition Law in Germany

The Federal Republic of Germany values the importance of international cooperation, especially in criminal law matters. Therefore, an extradition request will be respected and complied with if the requesting state fulfils the general criteria of the rule of law. Several reasons can prevent an extradition order from being recognised as legitimate under German law. These reasons range from the alleged criminal conduct, which does not constitute a criminal offence under German criminal law (§3(1) IRG), to reasonable suspicions that the defendant will not be given a fair trial in the target country (Art.6 ECHR). Solely politically motivated proceedings (§6 IRG) are also illegitimate. Please visit our extradition law page for a detailed list of how an extradition claim can be invalidated.

Germany manages the extradition of its citizens differently from non-citizens. The reason for this is that according to Article 16 Grundgesetz (German Constitution), German citizens enjoy special protection that is only granted to them. According to this provision, Germans cannot be deported to other states, except other EU member states or international courts. However, what is important to note is third countries (non-EU states) are not recognised as potential extradition destinations under the German Constitution and extradition to those countries is prohibited.

If you have a particular issue or legal question concerning German Extradition Law, you can contact our law office anytime. Our lawyers for German Extradition Law can be reached by phone, email and also provide video conferencing options. For more legal information, please visit our Extradition Law Homepage.

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European Law, the European Arrest Warrant and Pre-Brexit Extradition

In the form of the European Arrest Warrant (EAW), EU law provides a simplified extradition procedure for the extradition of a suspect, including the own nationals, to other EU member states. Although the German Grundgesetz was amended as early as 2000, the possibility of extraditing the own citizens was not available until the EU framework decision on the European Arrest Warrant of June 13th 2002 (RbEuHb) simplified the extradition between member states. The EU framework decision was implemented in Germany at the national level with the EU Arrest Warrant Act, legally effective since 2006. The corresponding regulations are found in a separate section of the IRG (Law on International Mutual Assistance in Criminal Matters).

However, this does not mean that Germany needs to extradite its citizens to other EU member states in all cases. Any obstacles to extradition must always be considered. Such barriers prohibiting extradition exist, for example, if the person to be extradited is still a minor or has already been finally convicted of the offence on which the arrest warrant is based. In addition, other reasons can also lead to inadmissibility or entitle a person to challenge the extradition request.

Pre-Brexit, various extradition orders took place between the Federal Republic of Germany and the UK. These included cases involving the extradition of German citizens for criminal prosecution or execution. When the European Arrest Warrant was formally adopted into German law and Brexit, 18 German citizens were deported to the UK for various offences. The status of the United Kingdom is now changing with Brexit from an original EU member state to a “third country“.

The UK, Brexit and Third Country Status

With Brexit now being completed and the UK officially out of the EU, the UK has the third country status officially. This status will impact the UK in various business and legal areas, especially regarding the future intergovernmental EU projects. In extradition law, the EU exit has very significant consequences.

During the period between the notification of Article 50 TEU and the UK’s eventual exit, a case involving an extradition order of an Irish national from Ireland to the UK was involved. This extradition order was challenged because the potential penalty would continue after Brexit in the event of extradition. The European Court of Justice ruled that even with the notification of Article 50 TEU, the UK was still a member of the EU at that time. For this reason, the extradition order was carried out. However, now that the UK has officially left the European Union, there will be changes.

Extradition Post-Brexit: German Citizens

Germany has announced that in the wake of Brexit, it will not be extraditing its citizens to the UK. The grounds used for this decision are that the UK is no longer an EU member state. For the time being, this applies to the transitional period. Therefore, should a German citizen commit a crime in the UK and flee to Germany, Germany will no longer be legally obliged to send that citizen back to the UK. This point was highlighted earlier in the discussions, including in February 2019, when it looked like Brexit would happen the following month.

However, the Federal Republic of Germany is not the only country taking this step, as Austria and Slovenia have made similar announcements. These countries have stated to the European Commission that continuing as is in the wake of Brexit would violate their respective constitutions. Generally, countries can be reluctant to extradite their citizens, as seen in the Carlos Ghosn extradition case. Other EU countries have similar national laws preventing the extradition of their citizens to non-EU states.

The UK stated that they expect the member states to conduct the criminal proceedings themselves in response. German law does not prevent the state from taking on such a case. It only prevents them from extraditing the citizen to a third country. Should the UK and the EU reach a comprehensive extradition agreement, further developments may be on this front.

Extradition Post-Brexit: Non-German Citizens

It should be noted that the constitutional protection provided by Grundgesetz according to Article 16 (2) only applies to German citizens, and therefore other EU citizens are omitted. Consequently, British nationals also do not fall within this scope of protection – neither before nor after Brexit. Thus, Germany will be entitled to extradite non-German citizens to the UK even after the EU exit, provided that the UK correctly complies with the requirements of an extradition procedure based on the rule of law.

Extradition Lawyers in Germany

When it comes to issues around extradition law, look no further than Schlun & Elseven Rechtsanwälte PartG. At Schlun & Elseven, our extradition law team has already provided assistance and successful representation to clients in all kinds of cases. We assist our clients worldwide from our Cologne, Düsseldorf and Aachen offices and our conference rooms in Berlin, Stuttgart, Hamburg, Frankfurt and Munich. Our lawyers can also travel abroad to meet clients and gather evidence if required. Contact us today if you need assistance in any issues relating to extradition law.

Our team of lawyers is ready to deal with every change the post-Brexit world will bring. In extradition law and other legal areas, you can rely on us to provide the advice you need.

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