Extradition Lawyer – Germany
1) Extradition from Germany to other Countries
The necessary basis for the extradition of a defendant abroad is generally a request for legal assistance from another country. This is a form of international legal assistance in criminal matters. In Germany, in the absence of a bilateral agreement between Germany and the state requesting assistance, the Act on International Cooperation in Criminal Matters (ACCM) constitutes the legal basis for international legal assistance. Under the Act, extradition can only be ordered if certain conditions are satisfied.
2) The Extradition Process in Germany
The extradition process begins with the receipt of a foreign request for legal assistance in Germany. An international search for persons can be arranged through the Schengen Information System (SIS), through INTERPOL and via targeted requests to participate in a search to other countries. In the European Union, it is further possible to issue a European arrest warrant. While this does not automatically assist in the extradition of the person searched for, it is helpful for a search within Europe.
After receipt of the request for legal assistance, the relevant authority (in Germany the Federal Office of Justice in consultation with the Federal Foreign Office and other federal offices whose areas of expertise are affected) decides, in accordance with §74(1) ACCM, whether there are any legal or political reasons not to grant the request. If there are no such reasons (e.g. there may be no risk of torture or other inhumane treatment of the person concerned), the request is usually forwarded to the relevant General Prosecutor’s Office. The latter then commences a search in accordance with §18 ACCM, while the extradition warrant is issued by the relevant Higher Regional Court, §17(1) ACCM.
Decision on the Legitimacy of Extradition
If there is a foreign arrest warrant and the person sought has been detained, the latter can declare his consent to a simplified extradition under §41 ACCM. If the person sought does not do so, the prosecution must make an application for a decision to the Higher Regional Court under §29 ACCM. The Higher Regional Court then has to decide whether extradition is legitimate. The following extradition can thus, in accordance with §12 ACCM, only be approved if the relevant court has declared the defendant’s extradition to be legitimate. The decisive factors are thus the legitimacy of the extradition and the evaluation thereof by the relevant court.
An extradition is illegitimate, inter alia, where:
- The crime alleged does not under German criminal law (the German Criminal Code) amount to an unlawful act (§3(1) ACCM)
- In the requesting state, there is a threat of torture or inhumane treatment/conditions of detention (Art. 16a(3) German Basic Law; Art. 3 CAT)
- If in the requesting state, the relevant offence is punishable by death and there is no assurance that the death penalty will not be imposed (§8 ACCM)
- The offence merely consists of a breach of military duties (§7 ACCM)
- The defendant cannot be moved due to serious illness, or extradition would entail a risk to their life (Higher Regional Court Hamm, 19 January 2006 – (2) 4 Ausl. A 34/05 (17 and 18/06))
- The person to be extradited is German, except where extradition to an EU country or an international court is concerned (inverse conclusion from §2(1) ACCM, exception under certain conditions: §80 ACCM)
- The proceedings are solely politically motivated (§6 ACCM)
- The principle of in dubio pro reo has not been respected (Art. 6(2) ECHR)
- One cannot expect the defendant to have a fair trial (Art.6 ECHR)
- There is a risk that the defendant may be extradited further without German consent (§11(1) Nr.2 ACCM)
- The defendant suffers from a psychiatric illness and is thus in danger of committing suicide (see Higher Regional Court Hamm 26 March 2009 – (2) 4 Ausl A 170/07 (88/09))
- The extradition would conflict with basic principles of the German legal system (§73 ACCM)
3) Search via Interpol
a) What is Interpol?
Interpol stands for International Criminal Police Organisation. The organisation has its headquarters in Lyon and, with 190 member states, constitutes the second largest international organisation after the United Nations (UN). Interpol aims for more intensive international cooperation where police work is concerned, thus supporting national police in its member states in an age of globalisation and of the internationalisation of crime. Interpol’s responsibilities lie mostly in the provision of databases and information for global communication between the member states, and among other things, they notify member states of searches for persons in other countries.
b) How does Interpol work?
The main task for Interpol is the coordination and execution of the exchange of information between the different member states. In this context, Interpol differentiates between “Notices” and “Diffusions”. “Notices” are sent from the relevant member states to Interpol. Interpol in turn is responsible for forwarding the information to other states, or rather for feeding it into their information platforms, so that it becomes possible to search for the defendant there. These “Notices” are categorised according to the type of request and given corresponding colours. Thus, a “Red Notice” is issued where there is a request for the arrest of an individual with the objective of extradition. Therefore, a “Red Notice” marks the beginning of a search in different countries in order to then commence extradition proceedings. Such a notice is sent by one member state, together with a national arrest warrant. It describes the crimes of the person sought, but also contains data such as previous prison sentences or the maximum sentence to be expected for the crime. It is important to know that every state evaluates this notice on its own and decides whether an arrest warrant should be issued. This only changes in the presence of certain extradition agreements between the two affected countries. So-called “Diffusions” are less formal types of alerts. They are also used to forward requests for arrest or for the ascertainment of the defendant’s whereabouts to the member states. Such a “Diffusion” is communicated directly by the relevant Interpol National Centre Bureau (NCB) of a state (in Germany the Federal Criminal Office) to any member state or the entire Interpol network. This ensures that a person can be entered into the police system of each member state within a very short time. Corrupt states use this method to have all Interpol member states search for one person without high hurdles. These “Diffusions”, just like “Notices”, are categorised according to the type of request and marked with colours, and are otherwise treated the same way.
c) Interpol’s Competencies?
Interpol is recognised by the UN as an international organisation. However, this does not in and of itself confer any competencies on Interpol, as the principle of national sovereignty continues to apply. To review the information distributed and forwarded by Interpol, the “Commission for the Control of Interpol’s Files” (CCF) has been established. The Commission is independent and has three main tasks:
- Ensuring that Interpol complies with data protection requirements
- Assisting with questions surrounding operations that require information on a specific person
- Reacting to applications on the part of member states concerning Interpol and Interpol’s data
Particularly where a Red Notice is issued, its subsequent deletion for illegitimacy after inspection by the CCF is not a rare occurrence. The CCF can further dismiss an application for the issue of a Red Notice by a member state if that state is in conflict with the rules of Interpol itself or the UN Human Rights Charter. Moreover, an application can be dismissed if it was made solely for political, religious, military or ethical reasons.
d) Interpol in Germany
In Germany, INPOL is used to effect the exchange of information between the German police and the German Federal Criminal Office. The Federal Criminal Office acts as a central contact point in Germany. The Interpol member states can access the INPOL databases for research purposes. That way, other member states can, inter alia, obtain information on searches for persons in Germany or trace searches for stolen vehicles.
4) Legal Remedies in the Presence of a National Extradition Warrant in Germany?
Even where a national extradition warrant has already been issued, it is still possible to take legal action against it. An affected person can commence proceedings before the relevant Higher Regional Court and apply to have the extradition warrant set aside. The Higher Regional Court will then set aside the extradition warrant in accordance with § 24(1) ACCM if either the reason for arrest has ceased to exist, or the extradition is declared illegitimate. Further, the prosecution can apply to have the extradition warrant set aside if they believe that extradition will not be possible, §24(2) ACCM.
5) Taking Action against the Police Request for Arrest
Where the defendant’s whereabouts in Germany are unknown, normally, the only thing inserted into the police system “Inpol” is a search with the objective of provisional arrest or an alert for the ascertainment of the defendant’s whereabouts. As soon as the authorities learn of the defendant’s whereabouts or when he is arrested, the matter becomes the responsibility of the General Prosecutor’s Office in the court district of the place of residence or the place of arrest. It is then decided whether a national extradition warrant should be issued on the basis of the request for extradition.
There is no legislation regulating possible remedies against the request for arrest itself. Court decisions on this issue, too, are scarce and not very helpful. It is however clear that the person affected has a need for legal protection, since in Germany, there is a risk that he will be arrested and extradited. The law firm Schlun & Elseven has extensive experience with police requests for arrests on the basis of international searches, and has been able to effect the deletion of entries from the German INPOL system at this early stage.
6) Scope of Court Decisions in Extradition Proceedings?
Generally, the court does not decide whether there is indeed a sufficient basis for suspecting the defendant of a crime. The requesting state is entitled to assume, on the basis of the legal character of the extradition proceedings, that the contracting state is rightly treating the suspicion as well-founded. Further, the Interpol “Red Notice”, where one has been issued, already provides information on the surrounding circumstances. If however there are special circumstances making the basis for suspecting the defendant questionable, the court can exceptionally decide whether the suspicion is well founded (see §10(2) ACCM). In doing so, it will require a presentation of facts that form a sufficient basis for suspicion.
7) Political Persecution
Our law firm has gained extensive experience representing politically persecuted members of parliament, oligarchs, state officials, military officials and other high-ranking individuals. The reasons behind political persecution are diverse and not limited to the person persecuted having different political convictions from those ruling his home country. Personal differences, political power struggles, allegations of corruption, economic interests and many other factors can lead to politically motivated proceedings. Proceedings that are solely politically motivated are illegitimate and in conflict with the fair trial principle under Art.6 ECHR. Since it is not always easy to prove the political motivation behind the proceedings, these cases necessitate a very close and trusting cooperation between lawyer and client. In cases where our clients cannot enter Germany, we regularly travel abroad for personal meetings and to gather evidence.
Schlun & Elseven – Your Competent Point of Contact in Extradition Law
Due to the importance of international cooperation in extradition matters, it is frequently forgotten that in the end, it is often German law or a German judge who will decide whether or not extradition should be ordered. In such proceedings, one should always rely on dependable and experienced legal counsel. Through our diverse language skills – English, German, Russian, Spanish, Turkish, and Portuguese – and having represented clients in a multitude of cases involving extradition proceedings, we have been able to amass a wealth of knowledge and a lot of experience in these types of cases. The law firm Schlun & Elseven is available to you nationwide and is your reliable and competent partner in all questions surrounding extradition proceedings and similar issues. Simply call us under 0241 4757140, send an e-mail to email@example.com or use our online form to contact us.