Overview
Bosnia and Herzegovina has been an EU candidate country since December 2022; accession negotiations were formally opened in March 2024. BiH is a member of the Council of Europe. Extradition traffic between Germany and BiH is governed by the European Convention on Extradition of 13 December 1957 in conjunction with the Second Additional Protocol of 17 March 1978. Germany has not ratified the First Additional Protocol of 15 October 1975; it therefore does not apply in relation to BiH. There is no bilateral supplementary extradition treaty between Germany and BiH; domestically, Sections 1 ff. IRG apply.
A point specific to BiH: the federal structure (Federation of Bosnia and Herzegovina, Republika Srpska, Brčko District) affects the substantive criminal law. In addition to the state-level Criminal Code, the criminal statutes of the entities are relevant. Extradition requests formally pass through the state level (Ministarstvo pravde BiH / Ministry of Justice of BiH).
By way of example, OLG Celle 1 Ausl 46/14 of 23 Nov 2015 concerning an extradition at the request of the local court (Amtsgericht) of Brčko (Brčko District): the extradition for the enforcement of trivial residual sentences (here: eight days) was declared inadmissible on grounds of proportionality (Section 73 IRG by analogy with Section 3(3) sentence 2 IRG).
Legal basis
Extradition to BiH is governed primarily by the European Convention on Extradition of 13 Dec 1957 (Federal Law Gazette 1964 II p. 1369; 1976 II p. 1778) in conjunction with the Second Additional Protocol of 17 Mar 1978 (Federal Law Gazette 1990 II pp. 118, 119). Germany has not ratified the First Additional Protocol of 15 Oct 1975. BiH acceded to the European Convention on Extradition on 25 Apr 2005.
Domestically, Sections 1 ff. IRG apply insofar as the European Convention on Extradition does not contain an overriding provision. Minimum requirements under Article 2(1) of the Convention: an offense punishable by a maximum penalty of at least one year; where a conviction has already occurred, the sentence or detention order imposed must amount to at least four months (under the Convention, the residual sentence still to be served is not decisive — on the proportionality threshold for trivial residual sentences, see OLG Celle 1 Ausl 46/14).
On the German side, the Higher Regional Courts are competent (Section 29 IRG); the granting decision is made by the General Public Prosecutor's Office. On the BiH side, the Ministarstvo pravde BiH (state-level Ministry of Justice) is the central authority; the issuing authority is, depending on the entity, the Tužilaštvo BiH (Prosecutor's Office of BiH), the Federalno tužilaštvo (Federation Prosecutor's Office), the Republičko tužilaštvo RS (Prosecutor's Office of Republika Srpska) or the Prosecutor's Office of the Brčko District.
For German citizens, extradition is excluded under Article 16(2) of the Basic Law. BiH in principle refuses the extradition of its own nationals (Article 6(1)(a) of the European Convention on Extradition; Article 34(a) of the Bosnian Mutual Legal Assistance Act); exceptions exist only on the basis of special treaties, for instance with Croatia, Serbia and Montenegro. Vicarious enforcement of a sentence under Sections 48 ff. IRG may come into consideration. It should be noted that many BiH nationals may at the same time be nationals of Croatia or Serbia.
Country-specific issues in Bosnia and Herzegovina
Federal criminal-law structure: Criminal-law jurisdiction is divided between the state, the entities (Federation of BiH, Republika Srpska) and the Brčko District. For the German admissibility proceedings, the decisive question is which criminal statute (e.g. Criminal Code of BiH, Criminal Code of FBiH, Criminal Code of RS, Criminal Code of the Brčko District) forms the basis of the offense. The OLG Celle (1 Ausl 46/14) reviewed dual criminality on the basis of Article 232 of the Criminal Code of the Brčko District in conjunction with Section 29 of the German Narcotics Act (BtMG).
Trivial residual sentences — OLG Celle: On grounds of proportionality (Section 73 IRG by analogy with Section 3(3) sentence 2 IRG), extradition for the enforcement of residual sentences below 10 days is regularly inadmissible (OLG Celle, decision of 23 Nov 2015 — 1 Ausl 46/14, drawing on Article 23(2) of the EAW Framework Decision / Section 83c(3) sentence 2 IRG as the standard of assessment).
ECJ C-237/21 "S.M.": In its judgment of 22 Dec 2022 (Case C-237/21, S.M.), concerning a BiH request for the extradition, for the purpose of enforcing a sentence, of a Union citizen living in Germany who holds Croatian, Bosnian and Serbian nationality, the ECJ carried forward the Raugevicius principles (C-247/17): Germany must first actively seek BiH's consent to the sentence being enforced in Germany; only if BiH does not consent may the Union citizen be extradited.
Detention conditions: CPT reports on BiH document overcrowding in individual facilities, particularly the prisons in Zenica, Foča and Sarajevo. Entity-specific situation reports must be consulted; the Mostar facility and the women's facility in Tuzla are regarded as comparatively modern.
Judgments in absentia: review under Article 3 of the Second Additional Protocol to the European Convention on Extradition; a viable assurance of a retrial is required.
Detention conditions and the human-rights review
Detention conditions in Bosnian-Herzegovinian prisons are uneven and depend on the entity. CPT reports document, in individual facilities, overcrowding, outdated infrastructure and deficiencies in medical care. Particularly problematic in the past: Zenica prison (Federation), Foča prison (Republika Srpska) and the Sarajevo prison.
The Mostar facility (Federation) and the women's facility in Tuzla have been modernized; the Istočno Sarajevo facility (the first state-level high-security prison, opened in July 2020) meets European standards.
In every BiH extradition, the defense should determine the specific prison — entity-specifically — and demand a facility-specific assurance. General guarantee declarations at the state level are regularly considered insufficient under German case law. Relevant sources: CPT reports, reports of the Ombudsman of BiH, and monitoring reports of local NGOs (Helsinki Committee for Human Rights in BiH).
Lines of defense
The defense in BiH extradition proceedings involves specific points of review:
- Entity jurisdiction: identifying the applicable criminal-statute basis (Criminal Code of BiH / FBiH / RS / Brčko) and reviewing dual criminality.
- Section 73 IRG in conjunction with Section 3(3) sentence 2 IRG by analogy (trivial residual sentences): disproportionality where residual sentences fall below 10 days (OLG Celle 1 Ausl 46/14).
- Article 3 ECHR / Section 73 sentence 1 IRG (detention conditions): facility-specific assurance; submitting CPT reports and Ombudsman reports.
- Article 16(2) of the Basic Law: excluded for German citizens; equally applicable to dual nationals.
- Petruhhin (C-182/15) / ECJ C-237/21: for Union citizens, in the case of a request for prosecution the home member state must be informed (Petruhhin); in the case of a request for the enforcement of a sentence, Germany must first seek the third country's consent to enforcement in Germany (C-237/21).
- Article 3 of the Second Additional Protocol to the European Convention on Extradition (judgments in absentia): demanding a robust assurance of a retrial.
- Article 3(2) of the European Convention on Extradition / Section 6(2) IRG: in individual cases of ethnic-political motivation (inter-ethnic conflicts).
- Rule of specialty (Article 14 of the European Convention on Extradition): limitation of prosecution to the offenses granted.
- Constitutional complaint with an urgent application (Section 32 BVerfGG): in BiH cases, promising on questions of detention conditions and proportionality.
Legal representation in Bosnian extradition proceedings
An extradition case is a specialized mutual-legal-assistance procedure that goes beyond classic criminal defense. Engaging a defense lawyer specialized in extradition law at an early stage is regularly decisive — not only after the formal extradition arrest warrant has been issued, but already from the moment of an arrest based on an Interpol notice, an SIS alert or a European Arrest Warrant.
As a Certified Specialist in Criminal Law with a focus on extradition law, I advise and represent affected persons nationwide before the competent Higher Regional Courts and in constitutional complaint proceedings before the Federal Constitutional Court.