The lawyers of SvS defend across borders and always keep an eye on the status of current case law.
We are co-founders of the international network of lawyers Concilium and are always able to call on first-class and proven colleagues abroad for fast and effective criminal defence.
We are committed to representing the interests of the prosecuted person at every stage of the extradition proceedings – if necessary in cooperation with foreign colleagues.
Obstacles to extradition – as shown below – may arise from violations of the fundamental principles of the German legal system in the requesting state.
Who’s Who Legal 2023
Who’s Who Legal 2023
Who’s Who Legal 2023
FOCUS Spezial: Ihr Recht 2023
Obstacles to Extradition
Extradition from Germany to Greece fails due to the principle of proportionate punishment
The public prosecutor’s office’s application for an extradition detention order was rejected because the extradition would contradict essential principles of the German legal system (§ 73 sentence 1 IRG). Because a prison sentence to be served for a period of more than 20 years as a punishment for participating in the smuggling of foreigners from a third country into a country of the European Union is inappropriate and unbearably harsh. If one also takes into account the fine of € 2,310,000 that was imposed at the same time, extradition would prove to be contrary to the principle of proportionality.
Extradition from Germany to Russia fails because of insufficient findings
According to the decision of the Higher Regional Court, a review of the causes of suspicion in the extradition process may be required if there are concrete indications of a violation of elementary principles of fair trial. Extradition for the execution of sentences is inadmissible if the conviction is based on a confession extorted from torture. The same principle should apply in principle if extradition is sought for the purpose of law enforcement and the requesting state invokes a blackmailed confession. Evidence obtained through torture or the threat of violence must not be used.
Extradition from Germany to Poland fails due to Polish judicial reform
The extradition warrant was revoked because of a high probability that extradition to Poland for the purpose of prosecution would prove to be inadmissible, at least for the time being, due to current developments in Poland in the context of the controversial “judicial reform”.
An extradition could – according to the Higher Regional Court – violate the right to a fair trial, so that the conditions for an extradition to Poland for the purpose of criminal prosecution were no longer given in respect to the current factual and legal situation.
Extradition from Germany to Russia fails due to impending human rights violations
A legally binding recognition as a person entitled to asylum in Germany, or recognition as a refugee in another Member State of the European Union, or the fact that the person concerned has in the past been granted protection from extradition in another Member State, is a weighty indication that the person concerned may be a politically persecuted person or may be threatened with treatment that would render his extradition inadmissible. This also applies accordingly in the case that the person concerned has been granted protection against deportation pursuant to § 60.5 AufenthG.
Extradition from Germany to the USA fails due to prison conditions
In principle, extradition traffic with the United States of America is based on international extradition treaties.
However, the decision of the Munich Higher Regional Court to grant extradition violated Article 19.4 sentence 1 of the Basic Law because the Higher Regional Court had not sufficiently clarified the danger to the complainant of being exposed to inhumane prison conditions – overcrowding in prisons and poor health care – in the state of destination (more precisely: in California).
If a state approaches the competent German authority with a request for extradition, the formal extradition proceedings begin first. This is based on the provisions of the Law on International Mutual Assistance in Criminal Matters (IRG) and has a two-stage structure (judicial admissibility procedure and authorisation procedure).
Within the framework of the admissibility procedure, the fulfilment of the indispensable conditions of admissibility and any obstacles to extradition are examined. This examination is preceded by a request from the Office of the Public Prosecutor General. Before the decision is made, the prosecuted person is granted a hearing (Section 28 IRG).
Further obstacles are
- Imminent political persecution or otherwise persecution contrary to the rule of law (Section 6 (2) IRG)
- Military offences (Section 7 IRG)
- Impending death penalty in the requesting state (Article 8 IRG)
- Impending double jeopardy (§ 9 no. 1 IRG)
- Statute of limitations for the criminal offence (§ 9 No. 2 IRG)
The last appeal of the persecuted person is the constitutional complaint.