Düsseldorf, 25. January 2015 – Dr. Martin Rademacher, German Defence Counsel on the European arrest warrant
It has mainly been the countries of Eastern Europe but also Greece, which have, on occasion, issued European arrest warrants imposing disproportionately high custodial sentences for relatively minor offences. Consequently, in some extreme cases in Germany, the courts have actually deemed such warrants to contradict our legislation and rejected claims for extradition.
Rumania, for example, has pronounced some unacceptably severe judgements, which by our standards are a violation of constitutional principles of proportionality and have lead to the denial of a request for extradition (Higher Regional Court Hamm, resolution dated 10.09.2013 – 2 Ausl 5/11). Slovenia also failed in its attempts to impose a particularly harsh sentence on a minor before the Higher Regional Court in Hamm (2 Ausl 54/14).
According to rulings of the German Federal Constitutional Court, a claim for extradition may not simply be rejected because the expected sentence is „too harsh in the eyes of the German legal system“, rather it has to be deemed to be „exceptionally severe“ (see BVerfGE 75, 1, 16 f.; BVerfGE 108, 129, 137; BVerfGE 113, 154, 162). Even prior to the European arrest warant coming into force, a plea for extradition was deeemd to be disproportionate and thus inadmissible, if the accused was facing a sentence of more than 10 years for the sale of 0.5 grams of heroine-cocaine mix (Higher Regional Court Zweibrücken, Strafverteidiger 1996, p. 105).
A more recent ruling concerned the threat of a „disciplinary order“ of 3 years and 4 months for the acquisition and subsequent return of less than 1 gram of narcotics (see OLG Stuttgart, NStZ-RR 2002, 108).
A recent attempt at extradition from Bulgaria was based on a judgement imposing a sentence of 8 years and 10 months for the theft of three cows and two calves (see Higher Regional Court Karlsruhe, resolution from 26.04.2011 – 1 AK 45/11).
In the last few years there have been many controversial requests for extradition as a result of traffic offences or, in particular from Poland, based on relatively minor breaches of obligations with respect to family support payments (see also Higher Regional Court Karlsruhe – 1 AK 12/13).
The parameters set by the German Federal Constitutional Court demonstrate how difficult it is to calculate proportionality in extradition proceedings within the scope of the European arrest warrant. However, it is my experience from a large number of cases that with relatively minor offences the German Higher Regional Courts are leaning towards sparing the accused from extradition arrest. This gives the accused the chance to settle his or her affairs in the country in which the European arrest warrant has been issued.
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