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:
- 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: § 80 IRG)
- The proceedings are solely politically motivated (§ 6 IRG)
- 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 IRG)
- 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 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.
Full-Service Support with Political Persecution Cases
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.
Interpol Red Notice Removal
Interpol has its headquarters in Lyon and, with 194 member states, constitutes the second-largest international organisation after the United Nations. Interpol aims for intensive international cooperation where police work is concerned, thus supporting national police in its member states in an age of globalisation and the internationalisation of crime.
Interpol’s responsibilities lie mostly in providing databases and information for global communication between the member states. Among other things, they notify member states of searches for persons in other countries. 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, an Interpol 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 to 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 contained 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.