Overview
Denmark is an EU member state and part of the European Arrest Warrant system. The legal basis is Framework Decision 2002/584/JHA and Sections 78 ff. IRG. The particular feature: under Protocol No. 22 to the TFEU, Denmark holds a special position in the area of justice and home affairs (opt-out). Denmark nevertheless remains bound by pre-Lisbon instruments such as the EAW Framework Decision 2002/584/JHA — but not by post-Lisbon instruments (including the directives on the rights of suspects 2010/64/EU, 2012/13/EU, 2013/48/EU; the European Investigation Order 2014/41/EU).
Extradition traffic between Germany and Denmark is regular owing to the proximity of the Schleswig-Holstein border, though moderate in numbers. Detention conditions and the rule of law are unproblematic by ECtHR and CPT standards. The defense concentrates on the formal EAW review, questions of trial in absentia and the rule of specialty.
For Nordic extradition traffic, the Nordic Extradition Convention of 15 Dec 1962 and — as its further development — the Nordic Arrest Warrant Convention of 15 Dec 2005 (Nordisk arrestordre) apply in addition. These apply only in the relationship between Denmark and Finland/Iceland/Norway/Sweden, not vis-à-vis Germany.
Legal basis
Extradition to Denmark is governed primarily by Framework Decision 2002/584/JHA, transposed in the Eighth Part of the IRG (Sections 78 ff. IRG). On the Danish side the Udleveringsloven (Extradition Act, lbk. 110/1998 as amended by Act 433/2003 and subsequent amendments) applies.
Denmark's special position is based on Protocol No. 22 to the TFEU (until the Treaty of Lisbon: the Protocol on the position of Denmark). Article 2 of Protocol 22 means that pre-Lisbon acts of the third pillar (including the EAW Framework Decision of 2002) continue to apply to Denmark, whereas post-Lisbon acts in justice and home affairs do not, in principle, bind Denmark. Denmark can adopt post-Lisbon instruments only through parallel agreements under international law.
On the German side, the Higher Regional Courts are competent in the admissibility proceedings (Section 29 IRG); the granting decision is made by the General Public Prosecutor's Office (Section 79(2) IRG). On the Danish side, the Ministry of Justice (Justitsministeriet) is the central authority; the requests are issued by the public prosecution services (anklagemyndigheden) and reviewed by the Byret (court of first instance) and the Landsret on appeal.
For German citizens, Article 16(2) of the Basic Law in conjunction with Section 80 IRG applies. With respect to the extradition of its own nationals, Denmark has made use of the return clause under Article 5(3) of the EAW Framework Decision (return for the enforcement of a sentence).
Country-specific issues in Denmark
Protocol No. 22 (justice and home affairs opt-out): Denmark is bound by the EAW Framework Decision 2002/584/JHA because it was adopted before the Treaty of Lisbon entered into force (1 Dec 2009). Post-Lisbon directives on procedural rights (interpretation, the letter of rights, access to a lawyer) do not bind Denmark — relevant in practice for questions concerning the procedural standard in the requesting state.
Nordic extradition law: Between the Nordic states, the Nordic Extradition Convention 1962 and the Nordic Arrest Warrant Convention 2005 (Nordisk arrestordre) apply in addition. These do not apply vis-à-vis Germany, but may become relevant in the case of onward transfers from Denmark to Scandinavia (rule of specialty).
Udleveringsloven and counter-terrorism: After 2001 Denmark reformed its extradition law several times, in particular in the area of terrorism. The previously comprehensive political-offense exception was narrowed; political persecution, however, remains a ground for refusal.
Judgments in absentia: Danish law recognizes proceedings in absentia only to a limited extent. In the case of extradition for the enforcement of a sentence following a judgment in absentia, an assurance of an effective retrial is required (Section 83 IRG).
Detention conditions: Danish prisons meet European standards; CPT and ECtHR case law shows no structural deficiencies. The Aranyosi issue does not arise in practice.
Detention conditions and the human-rights review
Detention conditions in Danish prisons meet high European standards. The Danish correctional system (Kriminalforsorgen) is regarded as one of the most progressive in Europe — with open and semi-open forms of imprisonment, a high staff-to-inmate ratio, good medical care and a focus on rehabilitation.
In its reports on Denmark, the CPT has found no structural deficiencies within the meaning of Article 3 ECHR. ECtHR convictions of Denmark in the area of detention conditions are atypical. Cell size, sanitary facilities, visiting arrangements and employment opportunities are regularly above the minimum requirements.
In defense practice, the Aranyosi review plays no central role in Denmark EAW cases. The focus of the defense lies on formal requirements, questions of trial in absentia, the rule of specialty and, in individual cases, the particular features of Denmark's special position in EU mutual-legal-assistance traffic.
Lines of defense
The defense in Denmark EAW cases follows formal and procedural points of review:
- Section 83a IRG (minimum particulars): Formal review of the description of the alleged offense. Standard: BVerfG 2 BvR 2009/22 of 15 Feb 2023.
- Section 83 IRG (judgments in absentia): In the case of Danish judgments in absentia, an assurance of the possibility of a retrial.
- Section 80 IRG (extradition of Germans): Review of the connection to the place of the offense and the assurance of return. Denmark has transposed Article 5(3) of the EAW Framework Decision — an assurance of return is standard.
- Dual criminality: Outside the list catalog, a substantive review. Danish offense definitions are largely comparable.
- Rule of specialty (Section 83h IRG): Limitation of prosecution to the offenses granted. Particularly relevant in the case of possible onward transfers Denmark → Nordic Arrest Warrant.
- Pre-/post-Lisbon distinction: Where procedural objections concern Danish procedural-rights standards, bear in mind that post-Lisbon directives (e.g. Directive 2013/48/EU on access to a lawyer) do not bind Denmark.
- Section 6(2) IRG / Article 3(2) European Convention on Extradition (political persecution): Very rarely applicable in Denmark cases; reviewable in the individual case.
- Double jeopardy (ne bis in idem) (Section 83(1) no. 1 IRG): In the case of parallel German investigations.
- Constitutional complaint with an urgent application (Section 32 BVerfGG): Rarely promising in Denmark cases; exceptions conceivable in the case of formal Section 83a IRG deficiencies.
Legal representation in Danish 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.