According to the German Federal Office of Justice’s extradition statistics from 2021, 12 Extradition requests from Ukraine were handled in Germany that year. The offences concerned were mostly theft and fraud. Extradition in general is a complex and burdensome process, that needs to be handled by specialised experts. However, since 2022 extradition between Germany and Ukraine is even more complex due to the Russian war of aggression on Ukraine.

At Schlun & Elseven Rechtsanwälte, our law firm operates internationally and offers the needed expertise and knowledge in handling extradition requests and Interpol Red Notices, to ensure our clients’ best representation in extradition proceedings. Please do not hesitate to contact us for timely and skilled legal support.

There are no bilateral extradition treaties between Germany and Ukraine. Extradition is regulated by the Council of Europe’s Convention on Extradition of 1957. Additionally, the provisions of the Law on International Mutual Assistance in Criminal Matters apply.

The Russian war of aggression poses severe challenges for Ukraine’s public organizsation in all areas, including compliance with international agreements and treaties. In a statement from April 2022, two months after the Russian Invasion of Ukraine started, the Permanent Mission of Ukraine to the Council of Europe has stated that the Ukrainian side would not be able to fully implement its obligations under certain international treaties for the period of the armed aggression of the Russian Federation. That being until the violation of Ukraine’s sovereignty is fully terminated and territorial integrity of Ukraine’s borders is guaranteed. These agreements also include the European Convention on Extradition and its additional protocols.

However, there are still extradition requests from Ukraine. Just recently in November 2023 a French court was faced with a Ukrainian extradition request concerning an individual wanted for embezzlement. The French court decided that the applicant state, Ukraine, is unable to guarantee that the individual will be brought before a court capable of guaranteeing basic procedural guarantees and therefore refused the request.

There is also the possibility that Ukraine will at seek the extradition of deserters. The war has led to the fleeing of six million Ukrainians, including numerous men fit for military service; Germany alone hosts around 180,000 male Ukrainian refugees aged between 18-60 years.  

The Austrian government has stated not to extradite deserters since the European Convention on Extradition forbids extradition due to militarily punishable offenses, including desertion. The German government however has not clearly declared the same. Even though extradition is excluded, when based on militarily punishable offenses, it is legitimate if a person has committed crimes outside of military law to escape military service. This might be the case if a person has used a forged medical certificate excusing them from military service, used fake ID papers or has bribed someone to avoid military service.

The extradition practice between Germany and Ukraine is determined by the European Convention on Extradition. The regulations concerning extradition listed in the European Convention on Extradition are the following:

• Article 2: The offence on which the extradition is based must be punishable by a minimum prison sentence of at least one year in both states.
• Article 3 and 4: Extradition is excluded for political and military offenses.
• Article 5: Concerning fiscal offenses, extradition will only be granted if this has been particularly agreed on by the member states regarding specific criminal acts.
• Article 6: Contracting countries are not obliged to extradite their own nationals.
• Article 7: The requested state may object to extradition if the alleged offense took place on its territory.
• Article 8: Ongoing proceedings for the same offensce in the requested state usually take precedence over extradition.
• Article 9: A prior conviction in the requested state for the act on which the extradition request is based also excludes extradition (“Non bis in idem”)
• Article 10: Extradition will not be granted if the statute of limitations expired according to the regulations of Germany or Ukraine.
• Article 11: Extradition can be denied if the requested person is threatened with the death penalty in Ukraine.

In 2020 the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) visited Ukrainian detention centres. They reported about credible allegations from 2019 of physical ill-treatment by prison officers following disobedient behaviour consisting of hits with rubber sticks, kicks, and punches and in a few cases even inflictions of burns, asphyxiation using a plastic bag, and “waterboarding”. The CPT also reported inmates’ allegations of threats of serious physical ill-treatment made by the prison staff, including one prisoner alleging to having been stripped naked and blindfolded and tied with a rope to a bed for 6 days with no breaks.

There were further reports about insufficient staff, which lead to fewer possibilities of direct contact with prisoners and increased staff-inmate tension. The sparse number of staff is also believed to have led to the appointment of “duty prisoners.” In the 2022 Country Reports on Human Rights Practices: Ukraine by the U.S. Bureau of Democracy, Human Rights and Labor the “duty prisoners” were described as “a select group of prisoners appointed by staff to maintain discipline, to punish newly arrived prisoners who refused to comply with their orders”. The CPT also reported about “duty prisoners” being involved in the ill-treatment of other prisoners alongside correctional officers in their offices in the administrative building.

Extradition is a complex matter that consists of many legal and political challenges. The entire process is extra ordinally burdensome for the individual involved as well as their loved ones. Our extradition team carefully monitors the current political situation in Ukraine and advises clients accordingly. To defend our clients against extradition, we meticulously analyse the extradition request, assess the potential areas of weakness, and assess the detention conditions in the respective prison in Ukraine. Please do not hesitate to contact us directly for expert legal defence.