Extradition between Germany and the Netherlands

As part of the extradition of persons following the regulations on the European Arrest Warrant, the member states are obliged to extradite their citizens. Extradition of citizens can only be refused if the requested member state undertakes to enforce the sentence imposed on the requested person itself.

For Germany, the Act on International Mutual Assistance in Criminal Matters (IRG) regulates the area of extradition. Section 1 (3) IRG states that international law provisions take precedence over the provisions of the IRG insofar as they have become applicable to domestic law. This means that in areas where the EU has issued its own regulations, the EU law and not the IRG is applicable. Therefore, since its introduction in 2004, extradition between Germany and the Netherlands has essentially been governed by the EU regulations on the European Arrest Warrant.

The European Arrest Warrant was introduced in 2004 and serves to simplify the handover of wanted persons within the EU. If a person is wanted by one of the member states for criminal prosecution or the execution of a sentence, the EAW (European Arrest Warrant) has replaced the lengthy extradition procedures that were previously necessary. The basis for the simplified procedure is the principle of trust that applies in many areas of the European Union. This means that the member states are fundamentally obliged to recognise court decisions from another member state without carrying out a separate examination of their own.

Nevertheless, there are some instances in which the authorities can refuse an extradition request from another member state. This applies, for example, if the wanted person is a minor, has already been convicted of the same offence in the past (following the “ne bis idem” principle), or the offence is time-barred.

The prohibition of double jeopardy is interesting regarding extradition because, among other things, the Netherlands takes a much more liberal approach to various offences, especially soft drug offences, than Germany. This repeatedly results in a significantly lower sentence than would have been imposed in a German court. According to the ECJ (European Court of Justice), Article 50 of the Charter of Fundamental Rights of the European Union prohibits a person from being sentenced again for an offence for which they have already been finally convicted or acquitted in the EU – even if they would have been punished much more severely in Germany. The prerequisite for this is an identical material offence, i.e. the same person must have acted at the same time and in the same place in both proceedings. It is up to the competent national court to decide whether this is the case.

The discontinuation of proceedings also prevents a person from continuing to be prosecuted for the same offence in the EU or another Schengen State or from being sought via Interpol. The mutual trust of the Schengen States and the right to freedom of movement would prevent a person from being detained or held in custody following a final decision, which also includes the discontinuation of proceedings (according to the CJEU in its judgement C-505/19 of 12 May 2021).

However, there are also exceptions to the prohibition of double jeopardy. For example, a state can declare that it does not consider itself bound by the prohibition of double jeopardy if an offence is directed against national security. This is only the case if the offence seriously destabilises essential functions of the state or the fundamental interests of society. Furthermore, according to the ECJ, in the event of an exception to the prohibition of double jeopardy, Art. 52 para. 1 sentence 2 of the Charter of Fundamental Rights of the European Union must always be observed, according to which any restrictions to the prohibition may only be made in compliance with the principle of proportionality.

Another procedural peculiarity in the Netherlands is the possibility of a judgment in absentia. In contrast, a judgment in the absence of the defendant is generally excluded in the German legal system. If a country requests the extradition of a person convicted in absentia or the enforcement of a judgement in absentia, a conflict arises between the different legal systems, known as the ordre-public conflict.

To resolve this conflict, European extradition law is now attempting to adopt a standardised European approach. Based on the case law of the European Court of Human Rights, according to Art. 5 No. 1 of the Framework Decision (2002/584) on the EAW, the person who has been summoned in person or has otherwise learnt of the date and place of the hearing does not enjoy extradition protection.

If the person concerned has not been informed accordingly, the extradition is linked to the condition that the issuing judicial authority gives an assurance deemed sufficient to request a retrial in the issuing Member State and to be present at the trial (Art. 5 No. 1 of the Framework Decision on EAW).

Extradition proceedings between Germany and the Netherlands usually begin with a European arrest warrant. In the Netherlands, such an arrest warrant is issued by the competent “Rechtbank” (district court). The main criminal proceedings in the Netherlands are like German law, which can also facilitate cooperation in criminal matters. Nevertheless, some distinctive features can also be relevant in extradition proceedings. A demand for toughness partly characterises the current political climate in the Netherlands. This is reflected, for example, in the imposition of pre-trial detention. Since 2003, the Netherlands has consistently been at the forefront of the imposition of pre-trial detention.

In this regard, numerous compensations have already had to be paid to those affected, often significantly higher than corresponding compensations in Germany. In the Netherlands, an arrest warrant can only be issued if there is either a risk of absconding or a severe threat to public safety. The principle of proportionality applies to the duration of pre-trial detention, whereby detention must be reviewed after every three months. In extradition proceedings, it should be noted that if a person has already been remanded in custody in the Netherlands, this must be offset against any prison sentence imposed as part of a German judgment.