The Justice and Home Affairs (JHA) Council of the Member States of the European Union passed the Framework Decision on the European Arrest Warrant and the surrender procedures between Member States on the 13th of June 2002 in Sevilla [1]. The principle on which the European Arrest Warrant is based on is the mutual recognition of the Member States national legal authorities’ decisions thus simplifying the extradition (surrender) of a requested person.

The essential innovations on the basis of this Framework Decision can be summarised as such, that 1) the number and the extent of criteria permitting extradition (surrender) and transit have been reduced, that 2) certain time limits for the decision to execute the European Arrest Warrant have been established, and 3) the designation of additional technical simplifications (e.g. in the area of tracing). The Framework Decision was to be implemented by the 31st of december 2003 and replaces the corresponding provisions of the existing conventions in the field of extradition in relations between the Member States. Up to now only a draft bill (EuHbG) [2] exists in Germany which will presumably be adopted by the German Bundestag in spring 2004.

This German draft bill (EuHbG) is based on the appropriate cognition that the exact laterally reversed equation of foreign arrest warrants and valid sentences with domestic decisions is not possible and is at the moment not to be thought desirable by any Member State. On the 3rd of december 2001 – before the basic agreement of the representatives (JHA) of the EU Member States on 6th/7th of december 2001 in Laken – the Federal Bar of Germany (Bundesrechtsanwaltskammer = BRAK) had articulately emphasised the factual and systematical differences in the criminal law cultures that have grown over centuries and are rooted deeply in the societies of the particular states. A fundamental rights clause for each individual case that has been demanded in this context – also by the Criminal Law Committees of the BRAK and the German Bar Association (Deutscher AnwaltVerein = DAV) – has fortunately been accounted for in Art. 1 (3) of the Framework Decision. According to this the European Arrest Warrant is subject to the fundamental rights and the fundamental legal principles of Art. 6 of the Treaty on European Union including Art. 6 of the European Convention on Human Rights (ECHR). As per Nr. 12 of the reasons of the Framework Decision a reference is also made to the Charter of Fundamental Rights of the European Union and the principles reflected therein. Nr. 13 of the reasons of the Framework Decision alludes to the possibility to deny the execution of the European Arrest Warrant if political prosecution or a serious risk of death penalty or torture exists. Despite the clear guidelines of the Framework Decision the draft bill in objective does not include an equally clear commitment. However § 6 (2) IRG [3] (no extradition in case of political prosecution or similar) and § 8 IRG (no death penalty) are still to be applied. The reason of the threat of torture in the requesting state which is understood as a compulsory barrier by international law has thus not been explicitly incorporated in the EuHbG. The same applies for a fundamental rights reservation of the German constitution and the ECHR as well as the Charter of Fundamental Rights of the EU, that, according to the ideas of the German practitioners represented by BRAK and DAV, should have been expressly stated in the national law. The Framework Decision does permit a national fundamental rights reservation (conversely in the explanatory statement for the German draft bill in regard to § 73 S. 2, page 27) and undoubtedly – also in the future – any surrender or extradition decision has to be compatible with the fundamental rights of the German constitution and accordingly may be legally reviewed by the German Federal Constitutional Supreme Court (Bundesverfassungsgericht).

From our point of view on the basis of the Framework Decision there can be no doubt, that within the scope of § 73 IRG (“ordre public”) – now extended on overriding legal principles of the EU – an appropriate legal examination in the sense of the Framework Decision has to be made. Thus a surrender (or  extradition) is illegitimate if it contradicts either “essential principals of the German legal system” (§ 73 S. 1 IRG) or “overriding legal principles of the EU” (§ 73 S. 2 IRG-Draft).

II.

Basically commendable is the conception of the bill for the implementation of the Framework Decision to integrate the proceedings for the European Arrest Warrant into the existing IRG and to keep the competence of the “Oberlandesgerichte” (Higher Regional Courts) – and simultaneously the competence of the “Generalstaatsanwaltschaften” (Public Prosecutors at the Higher Regional Court) – for the decision on the admissibility of the surrender (or extradition); a right decision also in view of Art. 104 GG (German Constitution). Under the aspect of constitutional law the admissibility of an extradition as a result of “another executionable decision”, i.e. decisions of a “legal authority” like the public prosecutor’s office (see § 83a (1) Nr. 2 and 3 IRG-Draft), remains extremely problematic.

In this context, the so called “rule of specialty” in § 83h (3) IRG-Draft, that states, that the irrevocable expression of renunciation may be manifested in a prosecutors protocol, is problematic. The Provision in §§ 41 (2) and (3), 11 IRG would have been preferrable as more in accordance with the rule of law.

III.

According to the guidelines of the Framework Decision (Art. 3 Nr. 2) the principle of “ne bis in idem” in § 83 Nr. 1 IRG-Draft extends on valid foreign judgments, as far as the sentence was one of an acquittal or in case of a conviction, the sanction has already been executed, is executed at present or may not be executed any more under the law of the requesting Member State. Corresponding to the jurisdiction of the EuGH (11th of february 2003, C-187/01 and C-335/01) the principle of “ne bis in idem” is also applicable to proceedings that were (if so: out of court) closed after an imposed (e.g. financial) condition has been fulfilled (see explanatory statement for the draft bill, page 39). For the rest § 9 Nr. 1 IRG remains completely applicable (inadmissibilty of extradition in case of German convictions, denial of the opening of the trial, denial of the Klageerzwingungsverfahren or in case of closed proceedings after the fulfillment of conditions and directives, the same in juvenile law).
The formulation in § 83 Nr. 1 IRG-Draft, that extradition shall not be admissible any more, if a sentence can not be executed any more under the law of “the requesting Member State” is presumably an editorial error; correctly it should read “under the law of the sentencing Member State may not be executed any more” (see explanatory statement for the draft bill, page 39). It is incomprehensible that with foreign judgments the indamissibility of the surrender depends on whether the execution of the sentence has already begun or ended while according to § 9 (1) IRG that applies to all cases of German court decisions the stage of execution is irrelevant. It would be appropriate to put the court decisions of any Member State on par with German judgments and to assume irrespective of the question of execution the inadmissibility of the surrender (or extradition) according to the principle of “ne bis in idem”.

IV.

The significant reservations regarding the surrender (or extradition) of national citizens remain on the basis of the draft bill, last but not least in face of the continuous expansion of the EU. The original regulation of § 83c (1) of the first draft bill, in which the extradition of a German citizen in case of criminal prosecution was considered admissible “if the requesting Member State assures that on German demand the prosecuted person will after the conviction to a term of imprisonment or any other sanction be re-transferred into the area of validity of this law for the execution” has not been implemented. Henceforth on the prosecuted persons wish at least an offer of the requesting state for a later re-extradition to Germany is guaranteed (§ 80 (1) IRG-Draft). However the “German demand” for a re-extradition (“acceptance of the offer”) is still mandatory. The Federal Republic of Germany has the power to temporarily ostracise national citizens from the social community for an extradition on the purpose of criminal prosecution in a Member State of the EU, e.g. in cases of bilaterally nonexistent punishability. There is no guarantee for the concerned person that Germany will accept the “offer” of a re-extradition, i.e. the formal demand of the German state.
This extraordinarily problematic legal situation becomes obviuos in the explanatory statement for § 80 of the draft bill (page 32 of the draft bill): “Whether Germany places an according demand depends on whether the assistance in the execution is presumably admissible and in the case of the admissibility if it will be granted. In unfrequent individual cases the possibility exists that an offer of assistance in the execution may legally not be taken. (…) Also the bilateral punishability may not be given. The execution of a foreign sentence to imprisonment in the Federal Republic of Germany without the ensuring of a bilateral punishability does not only violate the rules on international assistance in executional matters, but also violates major German legal principles”. Thus in the view of the authors of the draft the admissibility-criterion of mutual punishability in § 80 IRG-Draft is obviously not to be understood as a guarantee but it is deemed possible to extradite a German citizen for the purpose of a criminal prosecution who could for lack of punishability in the Federal Republic of Germany not be re-extradited for the purpose of execution. This contradiction has to be solved in § 80 IRG-Draft in the sense of the effective § 3 (3) IRG so that an extradition for prosecutional purposes may only be admissible if the re-extradition to the Federal Republic of Germany for executional purposes is legally possible and with the demand of the concerned guaranteed. The verification of bilateral punishability appears to be an indispensable prerequisite of admissibility (against § 81 Nr. 4 IRG-Draft).
The explanatory statement for the draft bill is to be fully agreed at another part: “Thus the uniformity of the main premises of admissibility inbetween surrender and assistance in the execution to which especially the bilateral punishability belongs has to be kept as much as possible.” (page 35 of the explanatory statement). As part of the admissibility it is not to be checked whether the allegation is bilaterally punishable or to be qualified as a delict from the catalogue (see § 81 Nr. 4 IRG-Draft). This concession to an accelarated practice of verification still seems to be highly problematic and will in case of doubt only be brought to an adequate solution with the help of § 73 IRG, the ordre-public-clause. The German practitioners nevertheless entertain serious doubt on the constitutionality of the intended provision in § 81 Nr. 4 IRG-Draft that on the basis of the catalogue of Art. 2 Hs. 2 of the Framework Decision a verification of the bilateral punishability is generally unnecessary.
Likewise the wish of the German practitioners - to create at last a facultative obstacle for the approval when the request is made to surrender a German citizen - has not become part of the draft bill (see § 83b IRG-Draft).

V.

It may be pointed out that the present proceedings of extradition under the rules of the IRG appeared to be deficient in respect to the normal case of an extradition proceeding in which the judges at the Oberlandesgericht did not personally see the prosecuted person on whom they had to decide and that the concerned person could not deliver an oral statement towards “his” judges (see §§ 21 ff. IRG, 28, 30 (2) and (3) IRG). It is acknowledged that Art. 104 GG has to be seen in the light of Art. 9 (4) IPBPR [4] that – contrary to Art. 5 ECHR – does not distinguish between pre-trial custody and extraditory custody. The German Federal Court (Bundesgerichtshof) derived in a case of the structurally comparable § 115a StPO the right (and if so the obligation) to an immediate examination of a custodial decision by a judge even the “next judge” in the sense of § 115a StPO from Art. 9 (4) IPBPR [5]. Thereof the demand in the context of the European Arrest Warrant is not to differentiate – like in the current extradition procedure – between court of hearing  resp. questioning and court of decision [6]. This modification has not taken place.

VI.

According to the statements of the BRAK dating 3rd of December 2001 und March 2003 as well as of the DAV dating June 2002 the concept of the European Arrest Warrant has to generally provide for a so called double necessary defense due to the dimension and complexity of the proceedings., i.e. in the country of the execution as well as in the country issuing the arrest warrant a case of a “necessary defense” (obligation for legal aid) in the sense of § 140 StPO [7] should be assumed and a defense counsel should be assigned (see Art. 6 (3) c) ECHR). In this area remains need for impovements bei the legislator.

Dr. Holger Matt,
Rechtsanwalt from Frankfurt am Main, Vice-Chairman of the ECBA

Dr. Anne Wehnert,
Rechtsanwältin from Düsseldorf, both members of the Criminal Law Committee of the BRAK

[1] Printed in the Official Journal of the European Communities, 18 July 2002, L 190/1.
[2] Gesetzentwurf der Bundesregierung zur Umsetzung des Rahmenbeschlusses über den Europäischen Haftbefehl und die Übergabeverfahren zwischen den Mitgliedstaaten der EU, BR-Dr. 547/03.
[3] IRG = Law on International Assisstance in Criminal Matters (LIACM).
[4] IPBPR = International Covenant on Civil and Political Rights (CCPR).
[5] BGHSt 42, 343, 347.
[6] See Schomburg/Lagodny Vor § 15 IRG Rn. 8 b.
[7] StPO = Strafprozessordnung = Code of Criminal Procedure.