German extradition lawyer on latest ruling

17. May 2018

 

It is estimated that well over 90 % of all arrest warrants in Germany are justified on the grounds that there is a risk of absconding. But the Higher Regional Court in Hamburg said in a decision of 16 May 2018 that the defendant's place of residence abroad doesn`t in itself justify the risk of absconding.

The risk of absconding is assumed if it is more likely that the defendant will evade criminal proceedings and trial than that he will be available for them. In order to justify the risk of absconding in the written arrest warrant, the German magistrates very often refer to the foreign contacts of the accused alleged by the public prosecutor's office, which usually does not convince me very much: Apart from the fact that today almost everyone has foreign contacts, it is also possible to flee abroad for those who have had no contacts there so far.

And what if the accused has his regular residence abroad? After all, the public prosecutor's office could say again that the accused has intensified his contacts abroad by even taking up residence there. However, the Court in Hamburg / Germany clarified in the decision of 16 May 2018 (2 Ws 66/18) that the defendant's place of residence abroad cannot in itself justify the risk of absconding.

regular residence abroad? ... cannot in itself justify the risk of absconding

A residence abroad, family ties at this place of residence and constant professional activity there have in some of our cases led to the release from detention in Germany after an arrest warrant had previously been issued here. In the case of suspects resident in the Netherlands, for example, in two cases the suspects were exempted from pre-trial detention but were required to attend regularly at a policestation in Germany.

In our experience as extradition lawyers in Germany, when issuing arrest warrants against suspects domiciled abroad, the courts focus on how quickly and easily they could obtain extradition in the suspect's home country if the suspect did not return . If the assessment of the extradition possibilities is favourable, one should be able to convince a magistrate that someone can be released from pre-trial detention and return to his foreign residence, where he works and where his family lives, and that he will return to Germany if his presence is needed for the criminal proceedings in Germany, especially as he does not want to risk the otherwise unavoidable extradition detention.

 


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