extradition to Ukraine: status quo at German higher regional courts

Russian war and extradition to Ukraine

06.12.2024 - We are dealing with several extradition requests from Ukraine. None of our clients has been extradited to date. However, the problem is complex. In the press, one reads a lot about the extradition of Ukrainian conscientious objectors from Germany. The extradition of conscientious objectors actually represents only one side of the coin. On the other side, there are just as many cases in which Ukraine officially does not want to have extradited men liable for military service because of conscientious objection, but because of some general crime. The result would be the same, though: Ukrainian citizens who are extradited to Ukraine for a general crime are then sent to the front in the war against Russia. And it often seems as if the generic offense cited in the extradition request is just an attempt to enforce extradition and get the men to the front lines.

German lawyer on Ukrainian extradition requests

The approach of using a general – and therefore extraditable – 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 set high standards for extradition to Ukraine, some of which have also been developed by the Federal Constitutional Court in previous extradition proceedings with other states. In the meantime, we have had cases in which the German extradition warrant was initially revoked (see OLG Hamm of November 5, 2024 - - III-2 OAus 119/24) because the Ukrainian authorities were not prepared for the questions from the German courts. This concerns, for example, questions from 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 Art. 336 (2) of the Ukrainian Code of Criminal Procedure almost constitute an obstacle to extradition from a German perspective – due to the use of “in absentia proceedings” with video technology.

Lawyer on prison conditions in Ukraine

It is also questionable whether war law applies to the entire territory of Ukraine, including those parts where there is no active military action. Information on the detention facilities in Ukraine in which a possible criminal sentence would probably be executed is also unclear, namely on the conditions of detention, in particular the number of detention places, the total number of prisoners, the number, size and equipment of the detention rooms, in particular information on windows and fresh air supply, occupancy of the detention rooms, and the type and conditions of access of the prisoners to medical care.

Extradition to Ukraine: status quo at German higher regional courts

But the status quo remains that the extradition of the persecuted to Ukraine does not appear inadmissible from the outset at German higher regional courts. At the Higher Regional Court of Hamm, we have also seen in other cases of non-execution of extradition warrants (see, among others, October 29, 2024 III - 2 OAus 74/24 - ) that the expected detention conditions are problematic, whereby, in our opinion, the circular from the Federal Office of Justice dated October 18, 2024 regarding the expected detention conditions in Ukraine cannot represent a final solution. It remains to be seen whether Ukraine can dispel concerns with assurances that are legally binding under international law.

The Higher Regional Court of Hamm has also just asked in November (see November 5, 2024 - III-2 OAus 86/24) in great detail about the conditions of detention, and the often very large (in our opinion “unrealistic”) distances of many hundreds of kilometers between the pre-trial detention center and the place of trial.

Due to the extradition despite the threat of military service in Ukraine, the submission of the Higher Regional Court of Dresden to the Federal Court of Justice (decision of August 9, 2024 - Aus 174/24) must also be awaited. In an older decision, the BGH had made it clear that the fundamental right to refuse military service with a weapon justifies the inadmissibility of extradition. Among other things, the BGH had stated that the fundamental right under Article 4 III of the Basic Law not only applies to persons who are subject to compulsory military service in Germany and does not only concern the refusal to serve with a weapon in the German army (Bundeswehr). Rather, it is a general fundamental right based on the fundamental right of freedom of belief and conscience, which applies without restriction to anyone who can be called upon to perform military service with a weapon.