Detention Exemption in Extradition Proceedings in Germany

German Extradition Lawyers

Detention Exemption in Extradition Proceedings in Germany

German Extradition Lawyers

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, 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.

If you require expert legal assistance in all matters concerning detention proceedings, Interpol Red Notices and extradition law, please do not hesitate to contact our law firm directly.

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Examples of Spared Detention in Extradition Proceedings

A well-known example of spared detention in extradition proceedings is the Puigdemont case. Catalan separatist leader and former head of government Carles Puigdemont, who lived in exile in Belgium after being deposed, was arrested in Schleswig-Holstein on 25 March 2018 while returning from a trip. Spain’s Supreme Court had issued a European Arrest Warrant against him shortly before finding him guilty of “rebellion” under Article 472 of the Spanish Penal Code. He had been in custody in Schleswig-Holstein since the arrest.

The Schleswig-Holstein Higher Regional Court did not consider the German offence of high treason, comparable to “rebellion”, to be fulfilled due to the lack of a violent element. However, it considered the accusation of embezzlement to have been made. As a result, the Higher Regional Court issued an extradition warrant but suspended its execution and ordered that the prisoner be spared. This order was also linked to conditions according to which Puigdemont had to post bail of 75,000 euros. He was not allowed to leave Germany without the consent of the Attorney General, and he also had to inform the Attorney General of any change in his whereabouts.

Overview: The Extradition Procedure

Before a suspect can be extradited from Germany to another country, another state must request mutual legal assistance. In Germany, this Act on International Mutual Legal Assistance in Criminal Matters is regulated in the law of the same name (IRG). It intervenes insofar as no particular bilateral treaty (extradition treaty) exists between Germany and the requesting state.

According to the law, extradition from Germany depends on certain conditions being met. It also regulates the course of the proceedings.

  • The receipt of a foreign extradition request in Germany initiates the extradition proceedings. The Schengen Information System (SIS) can open the international search by Interpol or targeted joint search requests of other states. The issuance of a European Arrest Warrant within the European Union is also sufficient.
  • The competent granting authority then examines the extradition request about conflicting legal or political grounds under Section 74 I IRG. In particular, the person must not be threatened with torture, inhumane treatment, or punishment in the extraditing state. The request is forwarded to the competent public prosecutor´s office if this can be denied after a comprehensive examination. The latter, in turn, can initiate the corresponding search measures according to Section 18 IRG. As a rule, it applies to the competent Higher Regional Court for issuing an [provisional] extradition warrant.
  • An extradition warrant is then ordered by a written arrest warrant issued by the Higher Regional Court by Section 17 IRG.
  • Subsequently, there are several possibilities to terminate the extradition proceedings. If a foreign arrest warrant exists, the prosecuted person can declare his consent to simplified extradition under Section 41 IRG after a judge’s instruction. If he disagrees, the public prosecutor’s office must apply to the Higher Court to decide the admissibility of extradition under Section 29 IRG. The extradition, thus, crucially depends on the assessment of admissibility by the competent court. In making this decision, the Higher Regional Court must examine whether or which obstacles to extradition might exist that would prohibit extradition.

The assertion of grounds of inadmissibility of extradition is an essential possibility of legal protection in extradition proceedings. As soon as an extradition warrant has been issued, it should already be raised to obtain a revocation or at least a provisional suspension of the warrant.

At the latest, however, they should be submitted before the final court decision on admissibility to be considered by the Higher Regional Court. This is because this admissibility decision is incontestable according to section 13 IRG, so at most, the possibility of filing a constitutional complaint against this is still possible.

Spared Detention (Non-execution of the Arrest Warrant)

The sparing of arrest means the temporary suspension of a deprivation of liberty that the extradition custody would otherwise threaten. Under § 25 IRG, the Higher Regional Court may suspend the execution of the arrest warrant for extradition at the time of its issuance if less drastic measures can ensure the purpose of the (provisional) extradition custody is also achieved thereby.

In addition, for more detailed explanations, reference is made to the sparing of detention in § 116 German Code of Criminal Procedure (StPO). According to this, the following can be considered as less drastic measures:

  • The order to report to the judge, the prosecution authority or a department designated by them at certain times (reporting requirement),
  • The order not to leave the place of residence or stay or a specific area without the permission of the judge or the law enforcement agency,
  • An order not to leave home except under the supervision of a specific person,
  • The provision of adequate security by the accused or another (bail). This is concretised by § 116a StPo, which stipulates that the security is to be provided by a deposit in cash, in securities, by pledge or by the surety of suitable persons. The judge may determine the amount and type of protection at their discretion.

However, the execution of the arrest warrant may again be ordered by the court under §116(4) StPO even after the last reprieve from detention if:

  • The accused grossly violates the duties or restrictions imposed on them,
  • The accused makes efforts to escape, fails to appear when duly summoned without sufficient excuse or otherwise shows that the trust placed in it was not justified, or
  • New circumstances have arisen that make the arrest necessary.

Overall, to revoke the arrest warrant, the circumstances must have changed in such a way compared to the time of the order for sparing detention that they would have caused the court to refuse to limit at that time. This protects the procedural guarantees of the accused that secure his freedom. Of decisive importance here is whether the basis of trust for the suspension decision has lapsed.

The court must comprehensively weigh all the circumstances of the individual case. The court must give special reasons for the decision to re-execute an arrest warrant. In doing so, it must make conclusive and comprehensible statements on the continued existence of the conditions for pre-trial detention or extradition custody, the balancing of fundamental rights of freedom and prosecution interest, and the question of proportionality.

An experienced lawyer for extradition law can explain the interests of the accused to the court in detail and concisely to decide in favour of the accused and make the sparing of detention more likely. Our legal experts will gladly help you in this regard and support you.

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