Ukraine Germany application for exemption from detention successful

March 6, 2025 – Due to extradition despite the threat of military service in Ukraine, the referral from the Higher Regional Court of Dresden to the Federal Court of Justice (decision of August 9, 2024 – OAus 174/24) has now been decided. The Federal Court of Justice (BGH, decision of January 16, 2025 (4 ARs 11/24)) has ruled that the extradition of a conscientious objector to his home country is not necessarily inadmissible, even if he has reason to fear that he will be conscripted into military service there and punished if he refuses. Nevertheless, extradition decisions by the higher regional courts can still be challenged by constitutional complaint, and there are influential voices, including in legal literature, that oppose the BGH decision and argue strongly against the extradition of conscientious objectors despite the BGH decision of January 16, 2025 (4 ARs 11/24).

German lawyerr against the extradition of conscientious objectors

We are dealing with several extradition requests from Ukraine. None of our clients have been extradited to date. However, the problem is complex. There is a lot in the press about the extradition of Ukrainian conscientious objectors from Germany. The extradition of conscientious objectors is actually only one side of the coin. On the other hand, there are just as many cases in which Ukraine officially claims not to have extradited men of military age for conscientious objection, but for some general criminal offense, but the result would be the same: Ukrainian citizens extradited to Ukraine for a general criminal offense are then sent to the front in the war against Russia. And there is often considerable evidence that the general offense specified in the extradition request is merely a contrived pretext to enforce extradition and get the men to the front.

German lawyer on Ukrainian extradition requests

The approach of a general – and thus extraditable – criminal offense could be considered necessary from Ukraine's point of view because, for extradition to take place, the offense underlying the extradition request must be punishable under the law of both states (the requesting and the requested state). This would be more than questionable in the case of conscientious objection in Germany.

Fortunately, the German higher regional courts, which have to decide on extraditions to Ukraine, deal with these cases very thoroughly and impose high requirements for extradition to Ukraine, some of which have also been developed by the Federal Constitutional Court in earlier extradition proceedings with other countries. We have now had cases in which the German arrest warrant for extradition was initially revoked (see OLG Hamm of November 5, 2024 - III-2 OAus 119/24) because the Ukrainian authorities did not respond to inquiries from the higher regional courts. This concerns, for example, questions raised by the Higher Regional Court of Hamm regarding the right of the persecuted person to participate in person in a future court hearing or the use of video conferencing technology, whereby the provisions of Article 336(2) of the Ukrainian Code of Criminal Procedure, from a German perspective, almost constitute an obstacle to extradition due to the implementation of “remote court proceedings.”

German lawyer on detention conditions in Ukraine

It is also questionable whether martial law applies to the entire territory of Ukraine, i.e., also in those parts where there are no active hostilities. Information on the detention facilities in Ukraine where any prison sentences would likely be enforced is also unclear, namely on the conditions of detention, in particular the number of places, the total number of prisoners, the number, size, and equipment of the detention rooms, in particular information on windows and fresh air supply, the occupancy of the detention rooms, and the type and conditions of access to medical care for prisoners.

Extradition to Ukraine: Status quo at German higher regional courts

However, the status quo at German higher regional courts remains that the extradition of persecuted persons to Ukraine does not appear inadmissible from the outset. At the Higher Regional Court of Hamm, we have also seen in other cases of suspension of execution of extradition arrest warrants (see, inter alia, 29.10.2024 III – 2 OAus 74/24 - ) that the expected conditions of detention are problematic, whereby, in our opinion, the circular issued by the Federal Office of Justice on October 18, 2024, on the expected detention conditions in Ukraine cannot provide a definitive solution. It remains unclear whether Ukraine can dispel concerns with assurances that are binding under international law.

The Higher Regional Court of Hamm has also just in November (see November 5, 2024 - III-2 OAus 86/24) inquired in great detail about the conditions of detention in Ukraine and emphasized the often very long (in our opinion “unrealistic”) distances of many hundreds of kilometers between the remand center and the court location due to the war.