Overview
Serbia is an EU accession candidate and a member of the Council of Europe. Extradition traffic between Germany and Serbia is governed by the European Convention on Extradition of 13 December 1957 together with its First Additional Protocol of 15 October 1975 and its Second Additional Protocol of 17 March 1978. There is no bilateral supplementary extradition treaty between Germany and Serbia; domestically, Sections 1 ff. IRG apply.
In practice Serbia — together with the other Western Balkans states — is one of the most extradition-intensive countries outside the EU. The focal points are organized crime, narcotics offenses, offenses by the so-called "Balkan clans," and the enforcement of sentences from Serbian judgments.
On the Serbian side the Zakonik o krivičnom postupku (Code of Criminal Procedure, Official Gazette RS 72/2011 as amended) applies, as does the Zakon o međunarodnoj pravnoj pomoći u krivičnim stvarima (Act on International Mutual Legal Assistance in Criminal Matters, Official Gazette RS 20/2009). A particular point of difficulty in German case law is the review of detention conditions and protection against torture allegations — exemplified by the decision of the Higher Regional Court of Karlsruhe (Oberlandesgericht, OLG), order of 22 Apr 2021 — Ausl 301 AR 124/20.
Legal basis
Extradition to Serbia is governed primarily by the European Convention on Extradition of 13 Dec 1957 (BGBl. 1964 II p. 1369; 1976 II p. 1778) in conjunction with the First Additional Protocol of 15 Oct 1975 (BGBl. 1990 II p. 118) and the Second Additional Protocol of 17 Mar 1978 (BGBl. 1990 II p. 124). As the legal successor to the former state union of Serbia and Montenegro, Serbia acceded to these treaties.
Domestically, Sections 1 ff. IRG apply insofar as the European Convention on Extradition and its additional protocols contain no overriding rule (Section 1(3) IRG). Under Article 2(1) of the Convention, extradition is possible for acts punishable under the law of both states by a custodial sentence with a maximum of at least one year. Where a sentence has already been imposed, a remaining term of four months is sufficient.
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. On the Serbian side, the Ministarstvo pravde (Ministry of Justice) is the central authority; the issuing authority is the competent Više javno tužilaštvo (Higher Public Prosecutor's Office), and confirmation is given by the Viši sud (Higher Court).
For German citizens, extradition is in principle excluded under Article 16(2) of the Basic Law. For Serbian citizens, Article 6(1) of the European Convention on Extradition applies, together with the German declaration, whereby Serbia likewise in principle refuses the extradition of its own nationals (Article 17 of the Serbian Constitution). In such cases, surrogate enforcement of the sentence under Sections 48 ff. IRG should be considered.
Country-specific issues in Serbia
Detention conditions and torture allegations: By order of 22 Apr 2021 (Ausl 301 AR 124/20), the OLG Karlsruhe declared extradition to Serbia for the enforcement of a sentence inadmissible and ordered the immediate release of the requested person after seven months of extradition detention, because substantiated torture allegations during the Serbian investigation had not been dispelled. The guarantee declaration issued by the Serbian Ministry of Justice concerning the Požarevac–Zabela prison did not address the torture allegations. The decision is a reference case: where there is substantiated submission on ill-treatment within the Serbian investigation or correctional system (including CPT reports on Požarevac-Zabela, Leskovac, Niš), the public prosecutor's office is under a general duty to review detention conditions and ECHR guarantees.
CPT reports: The European Committee for the Prevention of Torture (CPT) has documented, in several reports on Serbia (most recently in 2021), severe overcrowding, inadequate medical care, and ill-treatment allegations in individual facilities. The relevant ones are Požarevac-Zabela, Sremska Mitrovica, Niš, and the Belgrade District Prison.
Judgments in absentia: Article 3 of the Second Additional Protocol to the European Convention on Extradition provides for the possibility of an assurance of a new trial. Serbia regularly gives such assurances; their reliability must be critically examined (cf. the standard in OLG Koblenz 1 Ausl III-1/06 on Albania).
Rule of law: EU Commission reports on the accession process document persistent deficiencies regarding judicial independence, the handling of constitutional complaints, and corruption. These deficiencies feed into the German admissibility proceedings through Section 73 sentence 1 IRG (ordre public) and Article 6 ECHR.
Fiscal offenses: Under Article 5 of the European Convention on Extradition in conjunction with Article 2 of its Second Additional Protocol, extradition for tax, customs and currency offenses is in principle possible.
Detention conditions and the human-rights review
Detention conditions in Serbian prisons have in parts of German case law been classified as problematic. In its reports on Serbia, the European Committee for the Prevention of Torture (CPT) has repeatedly documented severe overcrowding, inadequate medical care, and concrete ill-treatment allegations. Particularly critical in the past: Požarevac-Zabela (documented ill-treatment according to the CPT and Amnesty International), Sremska Mitrovica, Niš, and the Belgrade District Prison.
The OLG Karlsruhe (Ausl 301 AR 124/20 of 22 Apr 2021) generalized the public prosecutor's office's duty to review in cases of extradition to Serbia for the enforcement of a sentence: where there are substantiated torture allegations during the Serbian investigation, an individualized assurance must be obtained regarding the detention conditions specifically envisaged, one that also engages with the allegations raised. General guarantee declarations are not sufficient.
From a defense standpoint the following is required: obtaining the relevant CPT reports, individualized documentation of the envisaged detention facility, and, where appropriate, engaging Serbian non-governmental organizations (Belgrade Centre for Human Rights, YUCOM) to secure evidence.
Lines of defense
The defense in Serbia extradition cases follows a specific review pattern:
- Article 3 ECHR / Section 73 sentence 1 IRG (detention conditions): an individualized assurance regarding the specific detention facility; where there are torture allegations during the investigation, substantiated submission by analogy to OLG Karlsruhe Ausl 301 AR 124/20.
- Article 3 of the European Convention on Extradition (political offenses): where there are connections to the Kosovo conflict or minority-policy issues, an in-depth review.
- Article 16(2) of the Basic Law: excluded for German citizens; for dual nationals, treated equally.
- Article 3 of the Second Additional Protocol to the European Convention on Extradition (judgments in absentia): review of the reliability of the retrial assurance; submission of relevant case law on inadequate guarantees.
- Confessions obtained under coercion: where there are indications that confessions were obtained through ill-treatment, extradition is inadmissible (cf. OLG Karlsruhe, loc. cit.).
- Rule of specialty (Article 14 of the European Convention on Extradition): limitation of prosecution to the offenses granted.
- Double jeopardy (ne bis in idem): where there are parallel German or Kosovar investigations.
- Statute of limitations (Article 10 of the European Convention on Extradition): review under the law of both states.
- Constitutional complaint with an urgent application (Section 32 BVerfGG): in Serbia cases promising, particularly where there are Article 3 ECHR complaints and detention-conditions issues.
Legal representation in Serbian 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.