Extradition practice between the Federal Republic of Germany and Ukraine is primarily based on the Council of Europe’s Extradition Convention of 1957. However, despite legal regulations, Ukrainian extradition requests between the two countries are repeatedly rejected by German authorities due to obstacles to extradition. This usually happens due to a precise legal examination of the individual case.
In the following article, the special features of extradition between Germany and Ukraine and the possibilities that can arise for those affected in the context of legal defence are to be shown by explaining the legal basis and using the example of past cases.
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The Legal Basis of Extradition between Germany and Ukraine
There are no bilateral extradition treaties between Germany and Ukraine. Extradition is governed exclusively by the Council of Europe’s European Convention on Extradition. Ukraine signed the Convention, including the first two Additional Protocols, in 1997; the third and fourth Additional Protocols entered into force in 2018. Among other things, Ukraine has reserved the right not to extradite Ukrainian citizens to foreign states. Germany itself has not issued any reservations or special agreements with regard to Ukraine, which means that the European Convention on Extradition, in its generally applicable form for Germany, constitutes the general set of rules concerning extradition traffic between the two states. In addition, the provisions of the Law on International Mutual Assistance in Criminal Matters apply.
Obstacles to Extradition
The European Convention on Extradition lists various cases where the fundamental obligation to extradite does not apply. These include, among others, the prosecution of militarily or politically punishable acts, the threat of the death penalty or imminent unlawful treatment in the requesting state. Furthermore, the Federal Republic of Germany is always obliged to uphold the principle of the rule of law. Thus, if a person is threatened with treatment in the requesting state that violates the rule of law, German authorities may not extradite the person concerned to the other state. Concerning Ukraine, there are various reports on the state of the judicial system: Human Rights Watch, Amnesty International, but also the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment (CPT, an institution of the Council of Europe) have investigated how court proceedings are conducted or how prisoners are treated. Inadequacies in Ukraine’s judicial system have been identified. Political protests were violently broken up, prisoners reported that they feared mistreatment in prison, and other reports described imprisonment without sufficient legal basis. The European Court of Human Rights also reprimanded Ukraine in various rulings for violations of the European Convention on Human Rights (ECHR) and insufficient criminal investigation of specific cases.
Extradition between Germany and Ukraine: Jurisprudence
In principle, Germany extradites persons to Ukraine. Temporary custody for extradition can also be ordered based on an Interpol search. In the past, however, extradition practice between Germany and Ukraine has taken European jurisdiction into account, and German authorities have rejected Ukrainian extradition requests during the proceedings
A prominent case in which the extradition request of a Ukrainian citizen was rejected by German courts was decided by the Oldenburg Higher Regional Court on 27 May 2020. The court rejected the extradition and cancelled the extradition order accordingly. This was because there were indications that minimum standards under international law had not been observed. In the case of the Ukrainian, it could be expected that the conditions of detention in the pre-trial detention centre in Kiev, where the man was to be housed after extradition, according to the Ukrainian court, did not meet the requirements of the ECHR. The CPT had visited the prison and found in reports from different years that the detention rooms were often heavily overcrowded and in very poor condition. There were not enough beds for all detainees, and ventilation and lighting were poor. The court, therefore, asked the Ukrainian authorities for a differentiated description of the concrete conditions of detention to be expected of the detained Ukrainian. However, the court found the Ukrainian response too general and consequently considered the assurances unreliable. Due to the correspondingly high probability that the person concerned in this case was also threatened with inhuman and degrading prison conditions, the extradition request was finally rejected.
This case shows how decisive the accurate examination of each case is. Persistent and precise legal work, as well as the examination of all circumstances in the specific case, are the decisive factors that can lead to the rejection of an extradition request. This is particularly important concerning a country like Ukraine: a country to which extradition is granted but where reasons can nevertheless regularly be found that may decisively speak against the legality of extradition.
Extradition to Ukraine against the Background of War
Currently, extradition traffic with Ukraine is suspended due to aggression on the part of Russia. The Russian war of aggression poses massive problems for Ukraine’s state organisation in all areas. These include compliance with international agreements and treaties. The Ukrainian state has therefore issued a statement concerning treaties and conventions of the Council of Europe. As early as 2014, with the Russian annexation of Crimea, Ukraine stated that compliance with certain international agreements, including the European Convention on Extradition, could no longer be fully guaranteed in the occupied territory. In a recent statement dated 18 April 2022, the Permanent Mission of Ukraine has now informed the Council of Europe that the Ukrainian side would not be able to fully comply with its obligations under certain international treaties for the period of the armed aggression of the Russian Federation, and as long as martial law was in force on the territory of Ukraine. Only with the complete cessation of the violation of sovereignty, territorial integrity and until the inviolability of Ukraine’s borders is guaranteed, Ukraine could again fulfil its obligations under international law from the aforementioned treaties. These agreements also include the European Convention on Extradition and its additional protocols. For extradition traffic between Germany and Ukraine, no extraditions from and to Ukraine will be carried out for this period. What effects the war will have on extradition traffic between Germany and Ukraine in the future can only be conjectured. However, even if the European Convention on Extradition were to be re-applied in its current form, it can be assumed that the conditions expected on the ground from the persons concerned will also have to be examined in detail in the future.
Practice Group: German Extradition & Interpol Law
Practice Group:
Extradition & Interpol Law
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