arrest of the traveler at the the airport in Frankfurt/Main

trends in extradition proceedings

Very many extradition proceedings begin with the arrest of the traveler at the airport, whereby the airport in Frankfurt/Main plays a central role in Germany because it has the most international flights. Anyone detained at the airport on the basis of a search by INTERPOL or SIS II must expect to be brought before the local court there - in Frankfurt as at any other German airport - which issues a longer detention order until the higher regional court (OLG), which is actually responsible, decides on provisional extradition custody. Unfortunately, most of the affected travelers experience that it takes too long to obtain all the necessary information and updates in preparation for the court decision from the General Prosecutor's Offices (GenStA) at INTERPOL and the issuing state of the "Red Notice". The person being prosecuted spends the waiting time in German prison. We have now seen cases where the red notice at INTERPOL should have been deleted long before the German detention order at the airport, which is in the sphere of the issuing states. If this had been known in advance, the person concerned would have been able to delete it himself at INTERPOL or at the Federal Criminal Police Office.

few new trends in German extradition law

There are also encouraging new trends in extradition law: in February 2023, for example, the Frankfurt Higher Regional Court finally declared extradition to Greece inadmissible in one of our cases after referral to the German Federal Court of Justice (BGH) following proceedings that lasted a total of four years - without extradition custody. In the same proceedings, the Frankfurt Higher Regional Court had initially stated that it did not want to make an explicit decision. The General Prosecutor's Office (GenStA) in Frankfurt had actually considered the extradition inadmissible from the beginning. And earlier, the Frankfurt Higher Regional Court - like other higher regional courts in Germany - took the view that there was no need for legal protection for a declaration of inadmissibility by the Higher Regional Court if the General Public Prosecutor's Office itself considered the extradition inadmissible and therefore did not grant the extradition and did not carry it out.

In these cases, there have always been divergent decisions by the Higher Regional Courts of Braunschweig, Dresden, Nuremberg and Frankfurt on the Higher Regional Court's duty to decide. Now, however, the Federal Supreme Court has expressly stated in its decision of August 18, 2022 (4 ARs 13/21) that the Higher Regional Court must decide on an application by the Office of the Public Prosecutor General to declare the extradition inadmissible pursuant to Sections 29 (1), 78 (1) IRG if the Office of the Public Prosecutor General considers the extradition inadmissible anyway due to an obstacle to extradition. The BGH decision (4 ARs 13/21) of 18.08. 2022 has the rights of the prosecuted person in mind, because only a decision by the OLG as an independent judicial authority brings the necessary legal certainty for the prosecuted person.

In the specific case, the Greek authorities had sent an extradition request to the German authorities for the purpose of criminal prosecution. The extradition of the prosecuted person for the purpose of criminal prosecution is possible in principle, including the extradition of a German citizen within the EU. The prosecutor's office at the Athens Higher Regional Court had issued a European arrest warrant for the prosecution of the defendant. However, the extradition was also inadmissible because the statute of limitations for prosecution had already expired under German law. Pursuant to S 7 (2) no. 1 of the Criminal Code, a prosecuted person who is a German citizen is also subject to German criminal jurisdiction for the criminal acts with which he is charged. The application by the GenStA to declare the extradition inadmissible was now to be decided by the Frankfurt Higher Regional Court following the decision of the Federal Court of Justice of August 18, 2022 (4 ARS 13/21) (Senate, decision of January 20, 2023 - 1 AuslA 177/21; Dresden Higher Regional Court, decision of December 13, 2022 - OLGAusl 172/21). The decision of the OLG Frankfurt applies - which is self-evident - only in Germany and does not eliminate the European arrest warrant for all other countries.

extradition requests from Albania, Moldova or Kazakhstan

The BGH decision on the obligation of the German Higher Regional Courts to decide on the inadmissibility of extradition is not the only new trend. In addition, lawyers from other EU countries now frequently entrust us with the protection of persecutees in the other EU countries, if the persecutees are German citizens or actually live permanently in Germany as foreigners. The protection of the persecuted is based on the European prohibition of discrimination. The Petruhhin decision of the European Court of Justice (C- 182/15) is groundbreaking. When it comes to extradition to third countries within the Member States, the protection of the persecuted person can be ensured from Germany by a German extradition request. We have already had such cases this year from Spain, Hungary and Ireland with extradition requests from Albania, Moldova and Kazakhstan. In the Petruhhin ruling (C-182/15), the European Court of Justice clarified that extradition of an EU citizen to a third country is possible in principle, but that the state requested to extradite must first ask the EU citizen's home state - in our cases Germany - whether extradition is also requested by Germany. In this case, a German extradition request must be granted priority over the extradition request of the third country. This is sometimes the decisive advantage in the case of extradition requests from Albania, Moldova or Kazakhstan.

an overview on the German extradition procedure and laws

German extradition proceedings are part of international mutual legal assistance in criminal matters and serve to surrender an accused or convicted person to the jurisdiction or law enforcement of another state.

to understand German extradition proceedings

In order to understand extradition proceedings, it must be understood that extradition proceedings are not criminal proceedings in their own right, but are basically formal proceedings in support of a foreign criminal prosecution, in which the guilt of the prosecuted is not examined, with some exceptions (cf. Section 10(2) of the IRC). In the domestic German proceedings on the basis of an extradition request received from another state, which are governed primarily by the German "Law on International Mutual Legal Assistance in Criminal Matters" (IRG), the decision is made exclusively as to whether the prosecuted person is to be extradited to the requesting state and whether he or she is to be detained in Germany until a decision is made on the admissibility of the extradition.

The extradition process has its own terminology. A foreign criminal prosecution authority seeks a "prosecuted person" and requests his extradition from the "requested" state in order to bring him before a criminal court in the "requesting" state or to have him serve a sentence already imposed in a completed criminal case in the requesting state.

The German domestic extradition procedure is governed by the second part of the IRG (§§ 2 – 42 IRG) and - if extradition requests come from member states of the European Union - by special provisions in the eighth part of the IRG (§§ 78 - 83j IRG) on the basis of the European Framework Decision on the European Arrest Warrant (RB-EUHb). Other legal sources for extradition with states outside the EU are the European Convention on Extradition of 13 December 1957 (EuAlÜbK), to which many states outside the EU have also acceded, and bilateral agreements with various countries, in practice primarily with the USA, India. Australiaand Canada.

The IRG has also retained the traditional terms in the implementation of the European Framework Decision by the European Arrest Warrant Act (EuHbG) in the eighth part of the IRG (§§ 78 - 83j IRG), although the underlying "Framework Decision on the European Arrest Warrant and the surrender procedures between the Member States of the European Union" (RbEuHb) makes a conceptual departure and speaks for the EU instead of the "extradition" of a simplified system of "surrender of persons". Since the EAW, at any rate, two different extradition procedures have been regulated in the IRG, the conventional one concerning extradition requests from all over the world - with the primacy of international agreements (§ 1 (3) IRG) - and the special one based on the European Arrest Warrant for the EU Member States.

European Arrest Warrant is not an arrest warrant, but only an extradition request

Despite the term, the European Arrest Warrant is not an arrest warrant, but only a regulated European extradition request. Saying that the European Arrest Warrant is not an arrest warrant but only an extradition request also means that "requesting" European states cannot use the European Arrest Warrant to issue binding orders for the "requested" member states to detain a person there. Only the "requested" member state decides on arrest and extradition custody, as with any other extradition request in the EU.

German guidelines for intercourse with foreign countries in criminal matters

The German "Richtlinien für den Verkehr mit dem Ausland in strafrechtlichen Angelegenheiten" (RiVASt) (engl. „guidelines for intercourse with foreign countries in criminal matters) put the IRG rules into more concrete terms. The guidelines bind public prosecutors and other authorities, and to a large extent also courts (3 (1) RiVASt). In practice, these guidelines are regarded as a valuable guide to the course of the proceedings. The guidelines bind public prosecutors and other authorities, and to a large extent also courts (3 (1) RiVASt).

If you look at the big picture, the domestic extradition procedure in Germany is divided into two parts, one of which requires a Higher Regional Court to declare the extradition admissible and the second part, which also takes foreign policy aspects into account, requires a ministry or an authority commissioned by the ministry to approve the extradition.

The domestic extradition procedure under the IRG is thus divided into a judicial, so-called "admissibility procedure" before the Higher Regional Court, in which the Higher Regional Court decides on the admissibility of the extradition, and a governmental, so-called "approval procedure," in which the approval authority, after a decision by the Higher Regional Court declaring the admissibility, additionally reviews the legality, but also the foreign policy and criminal policy expediency of the extradition. It is rare for the granting authority not to grant extradition before or after a decision by the Higher Regional Court establishing admissibility, but it does happen.

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