After Brexit has been finalised and the United Kingdom has officially left the European Union, the country has the formal status of a third country. This has significant consequences for extradition law. Extradition law is one of the areas in which EU law applied until Brexit. Therefore, the United Kingdom and the individual member states had to agree on how cooperation in criminal prosecution and extradition law should be regulated in the future. After a transitional phase of two years, during which EU law continued to apply, a new regulation has been in force since 1 January 2021.
Extradition after Brexit: German and non-German citizens
In the case of extradition, the nationality of the person concerned is particularly decisive. Germany, for example, does not extradite German citizens to third countries. Since Brexit, the United Kingdom has been a third country. According to the German Federal Ministry of Justice, German citizens may only be extradited to other EU states following Article 16 of the German Basic Law (GG) and, therefore, no longer to the United Kingdom.
However, suspected offenders who are nationals of a third country may continue to be extradited to the United Kingdom under the extradition provisions now in force. Concerning EU citizens, the same provisions apply as are generally applicable to the extradition of EU citizens to third countries. More information on the extradition of EU citizens can be found here.
Germany is not the only country to take this step and no longer extradite its citizens to the UK. Other countries have already told the European Commission that continuing the current arrangement after Brexit would violate their respective constitutions. In general, countries are reluctant to extradite their nationals, as the extradition case of Carlos Ghosn shows. Other EU countries have national laws similar to Germany that prevent the extradition of their citizens to non-EU member states.
In response, the UK stated that it expected the member states concerned to conduct the respective criminal proceedings themselves.
German law only prevents the state from extraditing its nationals to third countries but not from conducting the proceedings itself. Accordingly, German citizens could expect criminal proceedings in Germany instead of extradition to the United Kingdom.
European Law, the European Arrest Warrant and Extradition before Brexit
Extradition between Germany and the United Kingdom was carried out before Brexit as part of criminal prosecution within the European Union. The European Arrest Warrant offers all member states the possibility to request the judicial authority of another state to arrest and surrender a suspect. The European Arrest Warrant is based on the principle of mutual recognition of judicial decisions. Since its introduction by the EU Framework Decision of 13 June 2002, it has offered the EU states numerous advantages compared to conventional extradition procedures, such as faster and simplified implementation.