medical care in prison may not be sufficient

no extradition to UK

Munich - 10 April 2019 - The Higher Regional Court (OLG) of Munich (1 AR 250/18) has declared the extradition of a German citizen to the British authorities for prosecution currently inadmissible, because the medical care of the persecuted person is not sufficiently secured in prison in England. In the course of the proceedings, medical examinations in Germany had created relatively high hurdles and the English had not succeeded, among other things, in proving the accessibility of a cardiologically oriented emergency ward within reasonable reach of the prison. Thus, the Munich Higher Regional Court came to the conclusion that the conditions of imprisonment in England to be expected for the persecuted person in the event of his extradition did not meet the requirements to be met in view of his state of health. The revocation of the previous extradition warrant was the necessary consequence (§ 24 para. 1 IRG).

In which prison would the persecuted person be placed in the event of his extradition?

A criterion of immense importance for the defence with regard to problematic conditions of detention in the requesting state is whether the authorities there are at all in a position to announce in advance in which prison the persecuted person would be accommodated in the event of his extradition. The English could not. However, in its judgment of 25 July 2018 - C-220/18 PPU, the European Court of Justice clarified that Article 1(3), Article 5 and Article 6(1) of Framework Decision 2002/584/JHA (as amended on 26 February 2009) must be interpreted as meaning that the court must examine the conditions of detention in the detention centres in which the person to be extradited is likely to be detained, even if only temporarily or for transitional purposes.

In several other decisions, however, the Higher Regional Court (OLG) of Munich takes the restrictive view that, on the basis of the judgment of the European Court of Justice of 25 June 2006, the court of first instance of the person to be extradited will be imprisoned. July 2018, C-220/18 PPU, only the conditions of detention in the prison in which the persecuted person will be admitted after the quarantine period (see OLG München (1st Criminal Senate), order of 16.01.2019 - 1 AR 442/18 with reference to OLG München, order of 06 August 2018 - 1 AR 296/18 -, juris).

European Arrest Warrant (EAW) and Brexit

The European Court of Justice  (ECJ decision of 19.9.2018 - C 327/18) has ruled that the UK's notice of withdrawal from the EU of 29.3.2017 does not per se lead to a refusal to enforce an EAW.

If an orderly separation takes place, the resignation treaty even provides for the continuation of the European Arrest Warrant, but with the possibility of refusing the extradition of one's own nationals.

If a "NO-DEAL-Brexit" were to occur, the European Convention on Extradition would again apply, so that in any case - even in ongoing proceedings - a new extradition request would have to be made.

"Guidelines" for extradition proceedings in Germany

Of general interest for extradition proceedings in Germany are the "Guidelines for Intercourse with Foreign Countries in Criminal Matters" (RiVASt).The "Guidelines for Intercourse with Foreign Countries in Criminal Matters" (RiVASt) printed on the website of the German Federal Ministry of Justice (bmj.de) say a great deal about the conduct of extradition proceedings in Germany. The guidelines (RiVASt) concretize the legal regulations of the German IRG. The guidelines bind public prosecutors and other authorities, and to a large extent also courts (No. 3 (1) RiVASt). In practice, these guidelines are regarded as a valuable guide to the course of proceedings.

The general guidelines applicable in Germany contain specific guidelines for incoming requests for extradition, namely responsibilities in cases of imminent danger, no. 36 Provisional arrest (Section 19 IRG), no. 38 Notification of provisional arrest to the foreign authority, no. 39 Report on Provisional Detention for Extradition and Arrest, No. 40 Interrogation by a Magistrate of a Person Arrested Provisionally Not on the Basis of an Extradition Arrest Warrant (Section 22 IRG), No. 41 Interrogation by a Magistrate of a Person Arrested on the Basis of an Extradition Arrest Warrant (Section 21 IRG), No. 42 periods of detention, No. 43 initial measures after receipt of the extradition request, No. 44 revocation of the extradition arrest warrant (Section 16(2), Section 24 IRG), No. 45 consideration of German criminal claims, No. 46 relationship between extradition and deportation proceedings, No. 47 asylum proceedings, No. 48 naturalization proceedings, No. 49 obtaining judicial decisions under Section 29(2), Section 42 IRG, reporting obligations, and No. 52 implementation of extradition, to name but a few.