Anyone confronted with extradition proceedings is undoubtedly in an exceptional situation in which their freedom appears to be threatened, and under certain circumstances, their physical integrity may also be at risk. This represents an enormous emotional burden for the person and their environment and entails inconsiderable risks concerning the considerably restricted freedom of movement. In such cases, highly qualified legal support is needed, which always keeps an eye on all the particularities of this situation and the parties involved. The German law firm Schlun & Elseven is a globally active legal partner specialising in the defence and prevention of extradition proceedings and Interpol activities. Whether by challenging the arrest warrant, the extradition order itself, or even a constitutional complaint, we use all available legal remedies to protect you from extradition.
Our extradition lawyers represent business clients, companies and the sensitive group of politically exposed persons (PEP) against threatened or initiated extradition proceedings and Interpol Notices.
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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.
Appeal against the Extradition Proceedings
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:
- The crime alleged does not under German criminal law (the German Criminal Code) amount to an unlawful act (§ 3(1) IRG)
- In the requesting state, there is a threat of torture or inhumane treatment/conditions of detention (Article 16a(3) German Constitution; 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 IRG)
- The offence merely consists of a breach of military duties (§ 7 IRG)
- 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) IRG, exception under certain conditions: