Bilateral cooperation between Germany and Hungary has expanded and deepened in recent years. This became particularly noticeable with Hungary’s accession to NATO in 1999 and the EU in 2004. Since then, the common internal market and the free movement of persons within the European Union have led to a steady increase in the movement of goods and persons, increasing the importance of official cooperation. To provide our clients with an initial insight, we have outlined below how this cooperation takes shape in relation to extradition law and what you must consider should you be affected by an extradition request from Hungary.
Extradition of Citizens
Since the introduction of the European Arrest Warrant, EU member states cannot refuse to extradite their citizens unless they take over implementing the sentence themselves. In principle, states are obliged to extradite their citizens as well.
Legal Regulations on Extradition between Hungary and Germany
In Germany, extraditions are governed by the Law on International Mutual Assistance in Criminal Matters (IRG) provisions. According to Section 1 (3) IRG, international legal requirements take precedence over the provisions of the IRG insofar as they have become domestic law. Therefore, mutual assistance in criminal matters between Hungary and Germany is almost exclusively governed by the provisions of Union law.
The European Arrest Warrant (EAW) provisions primarily regulate extradition in EU law. This simplifies the surrender of wanted persons for criminal prosecution or carrying out of a (custodial) sentence and, since its introduction in 2004, has replaced the lengthy extradition procedures.
The principle of trust that applies in many areas of the European Union applies, i.e., extradition on the basis of an European arrest warrant is based on the mutual recognition of judicial decisions without further examination by the requested member state and applies in all EU states.
Obstacles to Extradition
A European Arrest Warrant may only be refused in a limited selection of cases. These include, for example, a previous conviction for the same offence (according to the principle of “ne bis in idem”), the fact that the person concerned is a minor, that the crime is time-barred or that proceedings are still pending in the executing state.
In addition, regarding possible obstacles to extradition, it must be noted that the principle of the rule of law always binds the German authorities. This prohibits the extradition of a person, for example, if it is to be feared that their right to a fair trial will be violated or that the person concerned would have to reckon with inhumane detention conditions.
For example, Amnesty International stated in its annual report 2022/23 that the right to a fair trial is not sufficiently guaranteed in Hungary, as a judgment of the ECJ has not been implemented since 2016. The right of judges to freedom of expression is not adequately protected, and there is no independent judicial body to monitor the impeachment of judges.
Regarding extraditions to Hungary, the detention conditions in Hungarian prisons have repeatedly become relevant in the past, which is why extraditions have frequently been considered unlawful according to German and European case law.
Past Jurisprudence regarding Extraditions to Hungary
Hungary has been repeatedly criticised for inadequate detention conditions. For example, the European Court of Human Rights (ECHR) upheld a complaint by Hungarian prisoners against overcrowded and cramped prison cells and poor hygiene conditions in Hungarian prisons.
The ECHR ultimately awarded the prisoners compensation of up to €26,000. Later, the ECHR provisionally stopped extradition from Germany to Hungary with a ruling in 2016 at the request of the Higher Regional Court of Bremen, referring to the real risk that the person concerned would be treated inhumanely or degradingly in Hungarian prisons.
Therefore, The German authorities would have to request all necessary information on the prison conditions before the extradition and, if this was not available within a reasonable time frame, could decide independently on whether to approve the extradition. The ruling is noteworthy insofar as the ECJ itself thus goes against the principle of mutual trust underlying the ECHR. In principle, this does not allow member states first to examine an arrest warrant issued by another member state but provides for the automatic execution of the arrest warrant.
A relevant decision by a German court was issued, among others, by the Higher Regional Court of Bremen in 2020 (decision of 16.03.2020 – 1 Ausl. A 78/19). After the ECJ ruling of 2016 and a report by the CPT (European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment), according to which the detention conditions in Hungary did not meet the European minimum standards, Hungary had promised to improve the detention conditions and had arranged for structural extensions to the prisons.
However, the Bremen Higher Regional Court found in its judgement that the extensions to the prisons were insufficient and that Hungary’s promises regarding improving prison conditions had, therefore, not been kept. The Higher Regional Court of Celle, on the other hand, ruled differently. In its judgment of 21.07.2021 (2 AR (Ausl) 40/21), the court states that there are no concrete indications that the detention conditions in a particular prison in Hungary violate Article 4 of the Charter.
Overall, it can be clearly stated that inadequate detention conditions in Hungarian prisons are a recurring problem. In the meantime, more than 450 complaints have been filed with the ECHR, and other courts have repeatedly ruled in favour of those affected. In the case of threatened extradition to Hungary, a precise legal examination of the facts of the case and the circumstances that a person may have to expect on the spot is, therefore, indispensable. In such cases, experienced legal representation can make a decisive difference in the outcome of the proceedings.
Practice Group: German Extradition & Interpol Law
Practice Group:
Extradition & Interpol Law
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