Being threatened with an extradition request is scary and unsettling. The situation appears even more threatening if the extradition request comes from a state where you cannot be sure what to expect after extradition. Reports of inhumane prison conditions or the suspicion that extradition is sought for political rather than criminal motives can reinforce such fears. It is therefore even more important to examine the extradition request as well as all the circumstances associated in the context of legal proceedings. Clients at Schlun & Elseven can always rely on the best possible support from the lawyers in our Extradition Law team and benefit from their expertise and many years of experience.

As with most European countries, extradition between Russia and Ukraine is based largely on the European Convention on Extradition of the Council of Europe from 1957. The Russian Federation signed the convention after the collapse of the Soviet Union in 1996. Although Russia has been expelled from the Council of Europe since the attack on Ukraine and is therefore no longer a member of the Council, the Russian Federation remains a member of the European Convention on Extradition as the agreement is also open to non-members. Additionally, the Act on International Mutual Assistance in Criminal Matters also applies here.

The obstacles to extradition laid down in the European Convention on Extradition are of various kinds. Regarding Russia, several extradition requests have been rejected by German authorities in the past, due to the suspicion of political motivation (Article 3 of the European Convention on Extradition). In addition, there were repeated indications of degrading and inhumane prison conditions in Russian prisons. All state institutions in Germany are always committed to the rule of law in all their actions. If there are indications that a requesting state has violated or is violating the rule of law of the criminal proceedings on which the extradition is based, German authorities and courts are accordingly obliged to reject the foreign extradition request. 

In the past, extradition to Russia happened repeatedly. But, there already was an increasing number of cases in which extradition was refused by German courts. A prominent example is the case of a Russian national who was to be extradited to Russia for alleged tax crimes. He had taken legal action against the extradition request, but the Higher Regional Court of Düsseldorf dismissed his complaint. The man then filed a constitutional complaint against the judgment of the court. The applicant submitted that he was being prosecuted for political reasons and stated that the allegations were merely a staging in order to nationalize his public limited company at a minimum price. In addition, there is a risk of inhuman prison conditions, which is a recurring and widespread problem in Russia. In the proceedings before the Federal Constitutional Court, the substantial right to effective judicial control was of particular importance. This right obliges the competent court to clarify the facts relevant to the decision and to examine any obstacles to extradition in a sufficient manner, i.e. completely in legal and factual terms.

The purpose is the preventive legal protection of a person. The person concerned must be protected from having their rights violated in the first place by degrading prison conditions or unfair proceedings. At the request of the Higher Regional Court of Düsseldorf, the Russian authorities had already issued a blanket statement that there was no political persecution and provided information on the expected prison conditions. In order to ensure the functioning of the extradition process, the principle applies that the states must trust each other to handle extradition proceedings correctly. This principle can claim validity as long as it is not shaken by conflicting facts, such as systemic deficits in the target country. A guarantee from the country of destination does not release the court from the obligation to first make its own risk assessment to be able to assess the situation in the country of destination and thus the reliability of a guarantee. If there are indications that there could be obstacles to extradition in a specific case, such as Section 6 of the European Convention on Extradition, German courts are obliged to carry out an independent examination.

In the present case, the Federal Constitutional Court found that the Higher Regional Court of Düsseldorf had not complied with this obligation. It had not clearly dealt with the complainant’s specific descriptions that the allegations made against him had been deliberately staged with the participation of state officials and had not sufficiently examined the reliability of the statements regarding the conditions of detention. The Federal Constitutional Court upheld the constitutional complaint in its judgment of December 8, 2021. The judgment clearly shows the importance of comprehensive clarification of the facts in extradition proceedings. If it can be made to believe that a person concerned is threatened with legal violations in the event of extradition, this is reason enough for the German authorities to refuse extradition. Therefore, a thorough investigation and legal assessment of all the extradition circumstances is essential.

The war in Ukraine also has a major impact on extradition proceedings with Russia. Although there are still regulations regarding extradition to Russia, in practice they have been suspended. At a conference in March 2022, the Council of EU justice and interior ministers decided that cooperation with the Russian Federation in international criminal matters should no longer take place for the time being. In addition, Member States should be more vigilant to requests for the extradition of their nationals and other residents of the European Union that might have been made by third-country authorities for political purposes. Specifically, the press release accompanying the conference said: „It was agreed that Russia’s behavior constitutes such a gross violation of international law and international conventions that it justifies the decision, largely taken by several member states, to categorically not process extradition requests made by Russia and Belarus and not to work cooperatively in criminal matters.” A prominent case in which this decision by the EU justice and interior ministers has already had an effect is the case of the Russian citizen Alexey Alchin in traditionally pro-Russian Bulgaria. Alchin had already emigrated to Bulgaria eight years ago, but it was only after he publicly burned his Russian passport in February in protest against the Russian war of aggression that the Russian authorities issued an extradition request. Contrary to the decision of the EU justice and interior ministers, a Bulgarian court granted the extradition request in August. However, on appeal in September, the court’s decision was overturned and Alchin’s extradition was ultimately denied.