In a recent case, our legal team successfully prevented a client from being extradited to Belgium for prosecution. If the extradition had been successful, our client would have faced a prison sentence of up to 15 years. Our lawyers were able to show in court – apart from formal errors in the European Arrest Warrant – that the client would be exposed to the risk of inhumane or degrading treatment within the meaning of Article 4 of the EU Charter of Fundamental Rights due to the expected poor detention conditions in Belgium and that the extradition request was therefore inadmissible.

The defense in extradition proceedings is a legally complex and time-sensitive matter. Our experienced extradition lawyers use the narrow time window to create an effective defense strategy. Together with the persons concerned and their relatives, they work unerringly towards an annulment of the European Arrest Warrant to immediately dissolve the danger of imminent arrest and the associated consequences.

Extraditions within the European Union

Extraditions within the European Union are regularly made based on the European Arrest Warrant. The admissibility requirements for the extradition of German citizens under the European Arrest Warrant are that

• the requesting state must transfer the prosecuted person back to Germany at their request to enforce the sentence, and
• pursuant to Section 80 (1) sentence 1 no. 2 IRG, there must be a relevant connection to the requesting member state. This is to be assumed if the offence in question took place on the territory of the requesting state or if at least essential parts of the offence occurred there.

The principle of mutual recognition characterises the European Arrest Warrant. This means that within the EU, it is trusted that the other states will comply with the necessary conditions. Accordingly, mutual trust between the member states is assumed so that the court dealing with an extradition request can assume that the requesting state respects the EU Charter of Fundamental Rights. Something else can only be assumed if there are obstacles to extradition according to Section 83 IRG or if the extradition would conflict with the principles contained in Article 6 of the Treaty on the European Union, according to Section 73 sentence 2 IRG.

About the Case

Our client was accused of being the key figure of an internationally active criminal organisation since August 2021. In total, he was charged with four counts by the Belgian prosecution. If extradited, he would have faced up to 15 years imprisonment. A European Arrest Warrant, by which the Belgian Public Prosecutor’s Office requested the surrender for the prosecution of our client, was issued by a court of first instance in West Flanders.

Subsequently, the client was arrested after a large-scale search of the premises and brought before the investigating judge on the same day. Before the judge, our client, inadequately advised by his mandatory counsel, consented to the simplified extradition according to Sections 41, 83h, II, III IRG.

Our lawyers were able to convince the court that extradition of our client would be unacceptable because of his personal medical history and the feared situation in Belgian prisons due to, among other things,

• severe overcrowding,
• lack of timely medical care,
• dilapidated buildings,
• hardly any organised activities outside the cell and therefore up to 23 hours a day spent in the cells
• and massive staff shortages.

The court assumed this to be an obstacle to extradition under Section 73 IRG. This section regards the provision of mutual legal assistance as inadmissible if it would contradict the essential principles of the German legal system or if the extradition would be incompatible with the principles contained in Article 6 of the Treaty on the European Union.

Accordingly, the court dealing with the extradition request had to contend with Article 4 of the EU Charter of Fundamental Rights. Therefore, it had to clarify whether the person to be transferred would be exposed to the risk of inhumane or degrading treatment due to the conditions of their detention. According to this, the human dignity of the persecuted person must be guaranteed in the requesting state, and their well-being and health must be adequately ensured. In this regard, the court stated that the persecuted person must not be subjected to a burden whose intensity exceeds the degree of suffering inevitably inherent in the deprivation of liberty.

This was done in a two-step examination. First, the court assessed the general detention situation based on objective information and, in a second step, determined whether there was a specific risk of inhumane or degrading treatment regarding the person concerned. In an overall assessment, the court decided that, in view of reports on the inadequate detention conditions in Belgian prisons and our client’s state of health, the minimum requirements for detention were not met and that there was a concrete risk of inhumane or degrading treatment.

The extradition of our client to Belgium for prosecution for the offences charged in the arrest warrant was therefore declared inadmissible by the court, and our client was immediately released from custody.

Schlun & Elseven: Competent Legal Assistance in Extradition Matters

Our highly qualified extradition team assists clients worldwide in extradition matters. To stand up to scrutiny, we place great emphasis on working closely with you to prepare a thorough and effective defense strategy. We examine how we can challenge a European Arrest Warrant against you in form and substance. With the right strategy, comprehensive legal expertise and many years of experience, it is possible – as the above case shows – to avoid extradition.