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Legal Solutions Made in Germany

Schlun & Elseven Rechtsanwälte has extensive experience in international extradition cases, especially those related to Interpol Notices. Through our knowledge of the complexities of extradition law, our close contacts with local extradition counsel worldwide and our global mobility, we have succeeded in challenging our clients’ extradition orders. Our clients in the field of extradition law are in exceptional situations that often affect their freedom, life and physical integrity, and this means they require exceptional legal support. At Schlun & Elseven Rechtsanwälte, our lawyers are ready to provide you with comprehensive service.

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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 (The International Criminal Police Organisation) and 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 whether there are any legal or political reasons not to grant the request. If there are no such reasons, the request is usually forwarded to the relevant General Prosecutor’s Office. The latter then commences a search, while the relevant Higher Regional Court issues the extradition warrant.

Challenging European Arrest Warrants

The European Arrest Warrant (EAW) is an arrest warrant that is valid across all European Union Member States. The EAW was designed for easier cooperation across borders between the members of the European Union. It can be used for the purpose of prosecution or for the execution of a custodial sentence. The EAW requires EU member states to arrest and extradite criminal suspects to the issuing state, and from there, the issuing state can place these individuals on trial.

If an EAW has been issued against you, our extradition law experts are ready to defend you. At Schlun & Elseven Rechtsanwälte, we are a full-service law firm based in Germany. We advise on all issues relating to the European Arrest Warrant, and will tirelessly support you in legal disputes. Our full-service approach ensures that you receive advice from experts in the field while also having the matter analysed from all angles.

Constitutional Complaints against German Extradition Orders

The constitutional complaint is regulated in the German Constitution. It may be lodged by any natural or legal person who claims that one of their fundamental rights or an equivalent to a fundamental right has been violated by a German public authority. Thus, within the framework of extradition proceedings, the admissibility decision of the court can, in principle, be challenged. If the Federal Constitutional Court finds that there has been a violation of (fundamental) law, the extradition decision in question is set aside and referred back to the competent Higher Regional Court (OLG).

The constitutional complaint must be lodged at the latest within one month after receiving the challenged decision and must contain a written statement of the grounds. The time limit begins with the publication of the admissibility decision.

It should be noted that the Federal Constitutional Court does not review every simple violation of rights in extradition proceedings. There is only an examination of the violation of specific constitutional law. This means that it only examines whether the decision constitutes a clear and weighty violation of fundamental rights or violates other specific constitutional laws.

Contesting German Extradition Orders

If there is a foreign arrest warrant and the person sought has been detained, the latter can declare their consent to simplified extradition under § 41 IRG. If the person sought does not do so, the prosecution must make an application for a decision to the Higher Regional Court under § 29 IRG. Per § 12 IRG, the following extradition can 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.

Extradition is illegitimate, inter alia, where:

  1. The crime alleged does not under German criminal law (the German Criminal Code) amount to an unlawful act (§ 3(1) IRG)
  2. In the requesting state, there is a threat of torture or inhumane treatment/conditions of detention (Article 16a(3) German Constitution; Art. 3 CAT)
  3. 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 IRG)
  4. The offence merely consists of a breach of military duties (§ 7 IRG)
  5. 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))
  6. 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) IRG, exception under certain conditions: § 80 IRG)
  7. The proceedings are solely politically motivated (§ 6 IRG)
  8. The principle of in dubio pro reo has not been respected (Art. 6(2) ECHR)
  9. One cannot expect the defendant to have a fair trial (Art.6 ECHR)
  10. There is a risk that the defendant may be extradited further without German consent (§ 11(1) Nr.2 IRG)
  11. 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))
  12. The extradition would conflict with basic principles of the German legal system (§ 73 IRG)

Country-Specific Extradition Law Services

At Schlun & Elseven Rechtsanwälte, our extradition law team provides country-specific information regarding extradition from Germany to Russia, Germany to the USA and extradition with the UK post-Brexit. According to German law, the extradition of German nationals is only exceptionally permitted to other EU countries, and certain international courts provided that “the rule of law is observed”. This allowance for extradition to EU member states is a recent development, but it does not extend to non-EU countries (“third countries”), including the USA.

Germany can extradite nationals of other states, provided certain preconditions and minimum requirements are met. These preconditions are primarily regulated in bilateral or multilateral agreements. The indispensable prerequisite for extradition under German law are as follows:

  • The criminal offence must be punishable under German law and punishable by a custodial sentence of at least one year.
  • There must be reciprocity,
  • There must be no obstacles to extradition, such as purely politically motivated proceedings.

The European Court of Justice has established an essential procedural requirement for citizens of other EU countries in the Petruhhin case. The ECJ ruled that an EU member state (including Germany) is not obliged to protect all other EU citizens residing on its territory from extradition. Therefore, citizens of other EU states do not enjoy the same level of protection as their nationals. However, the member state requested to extradite an EU citizen by a non-EU member state must first inform the member state of which the person in question is a national. This is because this Member State has a priority right to have their own national transferred for criminal prosecution before extradition to the non-EU Member States.

Detention Exemption in Extradition Proceedings in Germany

Every extradition procedure carries the dangers of unpredictable consequences for the persons concerned. Comprehensive and qualified legal support is essential for such an exceptional situation. In addition to legal advice to avoid such stressful extradition proceedings altogether, it is necessary to ensure legal protection by filing the required legal remedies after an extradition arrest warrant has been issued. Often, this can prevent the violation of the freedom, life and physical integrity of the persons concerned. In any case, it must be ensured that all legal possibilities against imminent extradition are used or at least considered. In particular, the possibility of sparing detention to temporarily avert an otherwise threatening deprivation of liberty (extradition custody) is essential in the legal defence in extradition proceedings.