Extradition from Germany to Belgium

The legal basis for extradition from Germany is not unified. In principle, the German Basic Law (GG) stipulates in Article 16 paragraph 2, that Germans may not be extradited from Germany to foreign countries. However, the law also stipulates that a deviating regulation can be made for extraditions to member states of the European Union, provided that the principles of the rule of law are upheld. Such a statutory provision was inserted into the Act on International Mutual Assistance in Criminal Matters (IRG) in Sections 78 – 83j to implement the framework decision on the European Arrest Warrant of 2002.

The European Arrest Warrant forms the basis for extradition between EU member states. The aim is to simplify and accelerate the enforcement of a national arrest warrant within another member state. The principle of mutual recognition is a fundamental element of the European Arrest Warrant. Within the EU, it can be trusted that the other states will comply with the necessary conditions because, as EU member states, they share common values on which the Union is based.

Therefore, there is mutual trust between the member states, so the court dealing with an extradition request assumes that the requesting state respects the rights of the EU Charter of Fundamental Rights. This trust can be disturbed by concrete evidence if there is reason to assume a breach of the “ordre-public” within the meaning of Section 73 sentence 2 IRG. This can be assumed, for example, if there is a real danger that a prosecuted person will be subjected to inhuman or degrading treatment in the requesting member state.

Due to this presumption of trust, the defence against a European Arrest Warrant is particularly demanding and requires the support of experienced lawyers. Extradition is permissible even if the suspect’s act does not constitute an offence under the law of the requested state. The only decisive factor is the list of offences in the framework decision. This includes, for example, participation in a criminal organisation, terrorism, human trafficking, facilitation of unauthorised entry and residence and corruption. In contrast to most extradition agreements, the European Arrest Warrant is not characterised by the principle of double criminality.

Section 80 IRG substantiates Article 4 no. 7a and Article 5 no. 3 of the framework decision on the European Arrest Warrant. The conditions laid down therein for the extradition of a German citizen to a member state of the EU are as follows:

• The requesting state must transfer the prosecuted person back to Germany for execution at their request. This means that only the trial and the pronouncement of the sentence occur in the member state, and the sentence is subsequently served in Germany, Section 80 (1) sentence 1 no. 1 IRG.
• Likewise, according to Section 80 (1) sentence 1 no. 2 IRG, there should be a relevant connection to the requesting member state. According to Section 80 (2) sentence 1 no. 2 IRG, this is the case if the offence in question occurred on the requesting state’s territory or if at least essential parts of the crime occurred there.

Under Section 80(2) of the IRG, this relevant connection can be dispensed with if the transfer is nevertheless secured, there is no concrete connection to Germany, the offence is also punishable under German law, and the defendant’s legitimate interest in not being extradited does not outweigh the interests involved. In addition to the fundamental rights of the person concerned, practical requirements of extradition must also be considered.

If a conviction has already been pronounced in Germany, extradition for the execution of a sentence can only occur if the person concerned consents after being instructed accordingly by a judge, see Section 80 (2) sentence 1 IRG.

Obstacles to extradition can be of formal and material nature. According to Article 3 of the framework decision on the European Arrest Warrant, the following grounds for exclusion are initially relevant, based on which the requested member State may refuse to execute the arrest warrant:

• Amnesty: The offence is covered by an amnesty in the executing state, and that state is responsible for prosecuting the offence under its own criminal law.
• Double punishment: The arrested person has been convicted of the same offence – provided that, in the case of a conviction, the sentence has already been enforced, is in the process of being enforced or can no longer be enforced under the law of the sentencing member state.
• Minor: The person is a minor, i.e., has not yet reached the age of criminal responsibility in the executing State.

In addition, further grounds for challenging the European Arrest Warrant may apply under Article 4:

• Dual criminality requirement: This only applies to offences not explicitly listed in the framework decision.
• Parallel criminal proceedings: The executing state has initiated criminal proceedings against the person for the same offence, or the person has already been convicted in a third state for the same crime.
• Statute of limitations: The criminal prosecution is already statute-barred according to the rules of the executing state.

Further obstacles to extradition are standardised in Section 83 IRG:

• There is already a final conviction for the same offence (also mentioned in Article 4 of the framework decision on the European Arrest Warrant).
• The prosecuted person is incapable of guilt within the meaning of Section 19 of the German Criminal Code (StGB).
• A judgement in absentia has been passed.
• The threatened prison sentence is life imprisonment.

In addition, according to Section 73 sentence 2 IRG, there must be no violation of European ordre public. Thus, the provisions enumerated in Article 6 of the EU treaty must be complied with.

Our team dealt with a case in 2022/2023 by preventing the extradition of a German national due to the following shortcomings in Belgian prisons:

• Serious overcrowding in the prisons,
• lack of timely medical care,
• dilapidated buildings,
• hardly any organised activities outside the cell and therefore up to 23 hours of daily stay in the cells
• and massive staff shortages.

Such conditions in prisons are not isolated cases and are also recorded in reports by the Council of Europe’s Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), which last investigated several prisons in Belgium in 2021.