in this case integration works better in Germany

22. 02. 2019 - The basis of the extradition proceedings was a European arrest warrant issued by the District Court in Koszalin / Poland. The persecuted person was wanted throughout Europe because he was  sentenced to one year and two months' imprisonment in Poland.

The persecuted person has now been living in Germany for years and has built up a solid existence for himself and his family here. On our advice, he proved this to the General Prosecutor's Office at the end of 2017, even before there was even talk of an arrest warrant from Poland.

no extradition to Poland

When the arrest warrant was received by the General Prosecutor's Office in Cologne in November 2018, the General Prosecutor's Office initially wanted to send the persecuted person to Poland for social rehabilitation anyway, because from the point of view of the Public Prosecutor's Office there was initially no overriding interest worthy of protection in the execution of a sentence in Germany, which would override the interest of the Polish authorities in his transfer to execution of the sentence.

It was only after massive opposition that the Public Prosecutor's Office finally decided to assert an obstacle to the granting of a permit in accordance with § 83 IRG, since according to the law, the granting of the extradition of a foreigner who has his habitual residence in Germany can be refused if 1. the foreigner's residence in Poland is not in the country in which he resides. in the case of extradition for the purpose of criminal prosecution, the extradition of a German would not be permissible pursuant to § 80 I, II and 2. in the case of extradition for the purpose of executing a sentence, he does not consent to this after having been informed of the judicial record and his legitimate interest in executing the sentence in Germany outweighs.

given Poland's judicial reform it may be necessary ...

In a decision dated 7 January 2019 (Ausl 301 AR 95/18), the Higher Regional Court (OLG) of Karlsruhe declared the extradition of the persecuted person to Poland for criminal prosecution admissible only on the condition that the Public Prosecutor's Office grants the extradition with the provision that the Ambassador of the Federal Republic of Germany in Poland or a person appointed by him or a representative is entitled to take part in the main trial conducted against the persecuted person and to visit the persecuted person in custody in the event of a conviction. In this case, the persecuted person had asserted that the extradition was inadmissible because, after the judicial reform in Poland, the local judiciary was no longer independent and, in the event of his extradition, he could not expect proceedings under the rule of law. The Karlsruhe Higher Regional Court shares the view of the European Court of Justice in its ruling of 25 July 2018 (C-216/18; reprinted EuGRZ 2018, 396) that the requirement of judicial independence is part of the essence of the fundamental right to a fair trial and that courts or judges working in the court body must be independent and be able to provide effective judicial protection in this respect which cannot be influenced by political or third parties, and sees the development in Poland with concern.

by the way ....

Following the judicial reform in Poland, much has been said about non-compliance with the rule of law and the possible impact on German-Polish extradition procedures. In conclusion, it can be stated that the finding of a general lack of judicial independence in Poland can only lead to the inadmissibility of extradition in rare cases if the deficiencies of the rule of law can also have an impact on the specific case. This may tend to be more relevant in the area of criminal prosecution than in the area of enforcement of sentences.

The European Commission (COM) opened two infringement proceedings against Poland in 2017, namely 1. concerning the new pension scheme, which gives the Minister of Justice the right to decide on the extension of periods of service, which is incompatible with the principle of judicial independence and the indispensable nature of judges. The infringement procedure concerns 2. the new disciplinary arrangements introduced in Poland.

However, on 25.7.2018 the ECJ ruled that the initiation of such infringement proceedings alone does not lead to a refusal of extradition, but that in the event of a violation of the fundamental right of the person concerned to an independent court and a fair trial within the meaning of Article 47(2) , the refusal of extradition may be justified. For this, however, a genuine risk of violation of the fundamental right to a fair trial must be established before, in a second step, it must be verified that the person sought would also and precisely be exposed to such a risk after his or her surrender to the issuing Polish State.

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