Higher Regional Court Nuremberg: Extradition to Romania is not permitted

The law firm Rudolph Rechtsanwälte successfully defended a prisoner against the extradition to Romania.

The Nuremberg Higher Regional Court has ruled that the extradition of a persecutee to Romania for the purpose of the execution of sentences is not permitted.

The conditions in Romanian prisons do not meet the requirements for decent accommodation.

German Version: 

OLG Nürnberg: Auslieferung nach Rumänien ist unzulässig


1.      Circumstances of the case

The persecuted man was accused of having been drunk and drunk and having taken part in public road traffic by car in the city of Timisoara in the west of Romania in October 2014. Drunk driving both according to Art. 336 of the Romanian Penal Code and German law (§ 316 German Criminal Code) constitutes a punishable offence.

The prosecuted person was sentenced to one year and three months’ imprisonment by the Timisoara court for this act in Romania. The legal proceedings took place in the absence of the prosecuted party.

The Romanian authorities had searched for the persecuted person by European arrest warrant. In Germany, the person being persecuted was registered and pursued a regular activity.

He was arrested by the German authorities, and the provisional extradition detention was ordered. The persecutee was taken to Nuremberg Prison.

At the request of the German Prosecutor General’s Office, the Romanian authorities announced that the suspect was likely to serve his sentence in the “Arad” prison. The detention rooms in the correctional facility “Arad” would have an area of 15.37 square metres and be occupied by a maximum of five occupants. In addition, there is a corridor of 2.04 square meters and a medical aid group of 2.68 square meters. In the detention room itself there are five beds, there is room for luggage. If the detention room is fully occupied, each prisoner will have a base area of 3.07 square metres (including bed and area for furniture or luggage).

In addition to the information provided, the Romanian authorities had assured that the person being persecuted there would have access to a detention cell of three square metres “under closed regime” or a detention cell of two square metres, including bed and corresponding furniture, “in a half-open or open regime”.

2.      Decision of the Higher Regional Court Nuremberg

The request of the Prosecutor General’s Office for extradition of the persecuted person to Romania for the purpose of execution of the sentence was not granted.

The Nuremberg Higher Regional Court ruled on July 5th, 2017 (File No. 2_Ausl AR 14/17) that the extradition of the persecuted person is not permitted. The extradition warrant has been lifted. The man who was persecuted was immediately released from the Nuremberg prison.

In a similar case, the European Court of Human Rights (ECtHR) had infringed Art. 3 ECHR (Prohibition of torture and inhuman or degrading treatment or punishment), as the detainee had only a proportionate prison space of less than four square metres at his disposal (cf. judgment of 10 June 2014, file no. 51318/12). In Germany, the Federal Constitutional Court even considers a floor area of at least six square metres per prisoner to be the minimum requirement (cf. decision of the Federal Constitutional Court of 22 March 2016, file no. 2 BvR 566/15).

According to the judgment of the European Court of Justice (ECJ) of 05.04.2016 (file no. C-404/15, C-659/15 PPU), the extradition request of an EU member state may be refused if the persecuted person in the member state of the European Union is at risk of inhuman or degrading treatment.

The question of whether such a threat exists must be examined in a two-step procedure:

  1. First of all, on the basis of objective, reliable, accurate and duly updated information, it should be noted that there are systemic or general deficiencies in the conditions of detention in the requesting Member State, which affect certain categories of persons or certain detention centres.
  2. If there are factual indications of conditions of imprisonment in the requesting State that are contrary to human rights, the second stage of the examination must clarify which conditions of imprisonment the person being persecuted is to be expected in concrete terms in the event of extradition. Declarations or assurances from the requesting state must be obtained in this respect. If it cannot be ruled out that the person being persecuted will be exposed to a genuine risk of inhuman or degrading treatment in the event of his or her extradition, due to the assurances obtained, extradition is not permitted.

The Nuremberg Higher Regional Court has applied these principles and found that there is no guarantee that the person being prosecuted will find conditions of detention in Romania that meet the requirements of the ECHR and the European Prison Rules. The assurances given by the Romanian authorities were not sufficient to deal with the risk of inhuman or degrading treatment.

The Higher Regional Court of Nuremberg thus adheres to the jurisprudence of most German Higher Regional Courts. Recently, only a decision to the contrary has been known. The Higher Regional Court of Hamburg declared the extradition of a persecuted person to the Republic of Romania to be admissible by order of 3rd January 2017 (file no. Ausl 81/16). The court, after a detailed examination, denied an obstacle to extradition, although poor conditions of imprisonment in Romanian prisons could be ascertained.

3.      Extradition: Legal Background

Not infrequently, a foreign (EU) state requests the German authorities to extradite a person who is either subject to ongoing criminal proceedings in the requesting state or who has already been given a legally binding sentence, which is now to be enforced.

After receipt of a formal request for extradition, the Public Prosecutor’s Office initiates extradition proceedings at a German Higher Regional Court. At the request of the Prosecutor General’s Office (preliminary) extradition detention is often ordered against the person being persecuted, in most cases because of the risk of flight. The Higher Regional Court examines whether the extradition of the persecuted party is admissible or whether there are obstacles to extradition. For example, if extradition is not admissible, as in the present case, due to the poor conditions of detention in the requesting state, the person being prosecuted must be released immediately. If, on the other hand, the Higher Regional Court considers extradition admissible, the request for extradition will be examined in a second case by the Federal Office of Justice. If extradition is authorised there, the person prosecuted shall be immediately transferred to the competent authority of the requesting State.

4.      Conclusion

In principle, European arrest warrants must be executed in accordance with the principle of mutual trust. However, the EU Member States may not give each other a hand for human rights violations (cf. BVerfG, decision of 15.12.2015, file no. 2 BvR 2735/14, “Solange III”). Extradition is therefore inadmissible if it contravenes fundamental principles of the German legal system or the minimum standard of human rights that is binding under international law. The requested state may not, by means of mutual legal assistance, contribute to exposing the extradition to torture or to inhuman or degrading treatment or punishment. These minimum requirements are meanwhile an integral part of international human rights protection.

The Higher Regional Court of Nuremberg orientated itself on these principles in its decision of July 5th, 2017. However, the statements made by the Hanseatic Higher Regional Court of Hamburg in the above-mentioned resolution are not convincing. The Senate believes that a “safe haven” will be created in Germany, which privileges Romanian accused and convicted persons who, after committing their crimes in Romania, could successfully depart to Germany. This would jeopardise the functioning of criminal justice within the European Union. This argumentation ad absurdum confuses the right of extradition to protection from torture, inhuman or degrading treatment or punishment. The Romanian government has not yet managed to meet European standards and the minimum prison conditions required by the ECtHR. It is therefore to be welcomed that last year a large number of German higher regional courts – and now also the Nuremberg Higher Regional Court – declared the extradition to Romania inadmissible on account of the prison conditions contrary to human rights (cf. OLG Celle, decision of 31 March 2017, file no. 2 AR (Ausl) 15/17 and resolution of 02.03.2017, file no. 1 AR (Ausl) 99/16; OLG Hamm, decision of 23.08.2016, file no. 2 Ausl 125/16; OLG Jena, decision of 14.07.2016, file no. Ausl AR 36/16; OLG Bremen, decision of 30.06.2016, Az. 1 Ausl. A 23/15; OLG Stuttgart, decision of 17.06.2016, file no. 1 Ausl. 6/16 and resolution of 29.04.2016, file no. 1 Ausl. 326/15).

The rejection of Romanian extradition requests will, however, only be possible as long as the Romanian Government does not finally improve prison conditions in accordance with European standards.