Legal Solutions Made in Germany
Schlun & Elseven Rechtsanwälte PartG is a German law firm active worldwide in the service of our global clients. Our team of German extradition lawyers are here to support you in all matters of extradition law and Interpol notice removal. As a full-service firm, we offer comprehensive legal advice from one source.
Extradition & Interpol Proceedings: Legal Expertise and Success by Schlun & Elseven
Schlun & Elseven Rechtsanwälte has extensive experience in international extradition negotiation and litigation, especially in cases related to Interpol Notices. Through our knowledge of the complexities of extradition law, our close contacts with local extradition counsel worldwide and our global mobility, we have succeeded in challenging our clients' extradition orders. Our clients in the field of extradition law are in exceptional situations that often affect their freedom, life and physical integrity, and this means they require exceptional legal support.
Full-Service Law Firm: Expertise Across Legal Fields
Schlun & Elseven Rechtsanwälte is a full-service law firm with offices in Cologne, Aachen and Düsseldorf along with conference rooms around Germany and this allows our team to use their expertise in other legal fields alongside their knowledge of extradition law. Our experience in the field of criminal law ensures that our lawyers possess excellent cross-examination skill whereas our background in corporate law affairs means that you can be assured of our negotiation abilities. Furthermore, often legal fields such as immigration law and family law may also grant additional rights which need to be at the forefront in extradition cases. Contact us today to start working with our extradition law team.
The Extradition Process in Germany
The extradition process begins with the receipt of a foreign request for legal assistance in Germany. An international search for persons can be arranged through the Schengen Information System (SIS), through Interpol (The International Criminal Police Organisation) and targeted requests to participate in a search to other countries. In the European Union, it is further possible to issue a European arrest warrant. While this does not automatically assist in the extradition of the person searched for, it is helpful for a search within Europe.
After receipt of the request for legal assistance, the relevant authority (in Germany the Federal Office of Justice in consultation with the Federal Foreign Office and other federal offices whose areas of expertise are affected) decides, per § 74(1) IRG (Gesetz über die internationale Rechtshilfe in Strafsachen), whether there are any legal or political reasons not to grant the request. If there are no such reasons, the request is usually forwarded to the relevant General Prosecutor's Office. The latter then commences a search per § 18 IRG, while the relevant Higher Regional Court issues the extradition warrant, § 17(1) IRG.
Decision on the Legitimacy of Extradition
If there is a foreign arrest warrant and the person sought has been detained, the latter can declare their consent to simplified extradition under § 41 IRG. If the person sought does not do so, the prosecution must make an application for a decision to the Higher Regional Court under § 29 IRG. Per § 12 IRG, the following extradition can only be approved if the relevant court has declared the defendant's extradition to be legitimate. The decisive factors are thus the legitimacy of the extradition and the evaluation thereof by the relevant court.
Extradition is illegitimate, inter alia, where:
- The crime alleged does not under German criminal law (the German Criminal Code) amount to an unlawful act (§ 3(1) IRG)
- In the requesting state, there is a threat of torture or inhumane treatment/conditions of detention ( § 16a(3) German Constitution; Art. 3 CAT)
- If in the requesting state, the relevant offence is punishable by death and there is no assurance that the death penalty will not be imposed (§ 8 IRG)
- The offence merely consists of a breach of military duties (§ 7 IRG)
- The defendant cannot be moved due to serious illness, or extradition would entail a risk to their life (Higher Regional Court Hamm, 19 January 2006 - (2) 4 Ausl. A 34/05 (17 and 18/06))
- The person to be extradited is German, except where extradition to an EU country or an international court is concerned (inverse conclusion from § 2(1) IRG, exception under certain conditions: § 80 IRG)
- The proceedings are solely politically motivated (§ 6 IRG)
- The principle of in dubio pro reo has not been respected (Art. 6(2) ECHR)
- One cannot expect the defendant to have a fair trial (Art.6 ECHR)
- There is a risk that the defendant may be extradited further without German consent (§ 11(1) Nr.2 IRG)
- The defendant suffers from a psychiatric illness and is thus in danger of committing suicide (see Higher Regional Court Hamm 26 March 2009 - (2) 4 Ausl A 170/07 (88/09))
- The extradition would conflict with basic principles of the German legal system (§ 73 IRG)
Search via Interpol: What is Interpol?
Interpol has its headquarters in Lyon and, with 190 member states, constitutes the second-largest international organisation after the United Nations. Interpol aims for intensive international cooperation where police work is concerned, thus supporting national police in its member states in an age of globalisation and internationalisation of crime.
How does Interpol work?
Interpol's responsibilities lie mostly in providing databases and information for global communication between the member states. Among other things, they notify member states of searches for persons in other countries. In this context, Interpol differentiates between "Notices" and "Diffusions". "Notices" are sent from the relevant member states to Interpol. Interpol, in turn, is responsible for forwarding the information to other states, or rather for feeding it into their information platforms, so that it becomes possible to search for the defendant there. These "Notices" are categorised according to the type of request and given corresponding colours.
Thus, a Red Notice is issued where there is a request for the arrest of an individual with the objective of extradition. Therefore, a Red Notice marks the beginning of a search in different countries to commence extradition proceedings. Such a notice is sent by one member state, together with a national arrest warrant. It describes the crimes of the person sought but also contained data such as previous prison sentences or the maximum sentence to be expected for the crime. It is important to know that every state evaluates this notice on its own and decides whether an arrest warrant should be issued. This only changes in the presence of certain extradition agreements between the two affected countries.
So-called "Diffusions" are less formal types of alerts. They are also used to forward requests for arrest or ascertain the defendant's whereabouts to the member states. Such a Diffusion is communicated directly by the relevant Interpol National Centre Bureau (NCB) of a state (in Germany, the Federal Criminal Office) to any member state or the entire Interpol network. This ensures that a person can be entered into the police system of each member state within a short time.
The UN recognises Interpol as an international organisation. However, this does not in and of itself confer any competencies on Interpol, as the principle of national sovereignty continues to apply. To review the information distributed and forwarded by Interpol, the "Commission for the Control of Interpol's Files" (CCF) has been established. The Commission is independent and has three main tasks:
- Ensuring that Interpol complies with data protection requirements,
- Assisting with questions surrounding operations that require information on a specific person,
- Reacting to applications on the part of member states concerning Interpol and Interpol's data.
Particularly where a Red Notice is issued, its subsequent deletion for illegitimacy after inspection by the CCF is not a rare occurrence. The CCF can further dismiss an application for a Red Notice by a member state if that state conflicts with the rules of Interpol itself or the UN Human Rights Charter. Moreover, an application can be dismissed if made solely for political, religious, military or ethical reasons.
- Interpol Red Notices: FAQ
- Interpol Notices and Diffusions
- How to Submit a Request for Information
- Interpol Red Notice Removal
Our law firm has gained extensive experience representing politically persecuted members of parliament, oligarchs, state officials, military officials and other high-ranking individuals. The reasons behind political persecution are diverse and not limited to the person persecuted having different political convictions from those ruling his home country. Personal differences, political power struggles, allegations of corruption, economic interests and many other factors can lead to politically motivated proceedings.
Proceedings that are solely politically motivated are illegitimate and in conflict with the fair trial principle under Art.6 ECHR. Since it is not always easy to prove the political motivation behind the proceedings, these cases necessitate a very close and trusting cooperation between lawyer and client. In cases where our clients cannot enter Germany, we regularly travel abroad for personal meetings and to gather evidence.
Taking Action against the Police Request for Arrest
Where the defendant's whereabouts in Germany are unknown, normally, the only thing inserted into the police system, "INPOL", is a search with the objective of provisional arrest or an alert for the ascertainment of the defendant's whereabouts. As soon as the authorities learn of the defendant's whereabouts or when they are arrested, the matter becomes the responsibility of the General Prosecutor's Office in the court district of the place of residence or arrest. It is then decided whether a national extradition warrant should be issued based on the extradition request.
There is no legislation regulating possible remedies against the request for the arrest itself. Court decisions on this issue, too, are scarce and not very helpful. It is, however, clear that the person affected needs legal protection since, in Germany, there is a risk that they will be arrested and extradited. Schlun & Elseven Rechtsanwälte has extensive experience with police requests for arrests based on international searches and can affect the deletion of entries from the German INPOL system at this early stage.
Legal Remedies in the Presence of a National Extradition Warrant in Germany?
Even where a national extradition warrant has already been issued, it is still possible to take legal action against it. An affected person can commence proceedings before the relevant Higher Regional Court and apply to have the extradition warrant set aside. The Higher Regional Court will then set aside the extradition warrant per § 24(1) IRG if either the reason for arrest has ceased to exist or the extradition is declared illegitimate. Further, the prosecution can apply to have the extradition warrant set aside if they believe that extradition will not be possible, § 24(2) IRG.
Scope of Court Decisions in Extradition Proceedings?
Generally, the court does not decide whether there is a sufficient basis for suspecting the defendant of a crime. The requesting state is entitled to assume, based on the legal character of the extradition proceedings, that the contracting state is rightly treating the suspicion as well-founded. Further, the Interpol Red Notice already provides information on the surrounding circumstances. If, however, special circumstances are making the basis for suspecting the defendant questionable, the court can exceptionally decide whether the suspicion is well-founded (see § 10(2) IRG). In doing so, it will require a presentation of facts that form a sufficient basis for suspicion.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.