Granting procedure (Sections 12, 74 IRG)

Function

The granting procedure is the second phase after the admissibility decision of the Higher Regional Court (Oberlandesgericht, OLG). In relations with non-EU states, the granting authority is regularly the Federal Office of Justice (Bundesamt für Justiz, BfJ), acting for the Federation (Section 74(1) IRG); for requests from EU member states — in particular under the European Arrest Warrant — the exercise of this power has been transferred to the Länder (Section 74(2) IRG, competence agreement of 2004), where the General Public Prosecutor's Offices decide on the grant.

Course of the procedure

The OLG declares the extradition admissible → the granting authority (the BfJ or, for EU requests, the General Public Prosecutor's Office) reviews political considerations in agreement with the Federal Foreign Office (Section 74(1) IRG) → granting with possible conditions (for example, a reservation as to the rule of specialty) → or refusal despite admissibility.

Significance for the defense

In the granting procedure, political and humanitarian considerations may be raised that the OLG was unable to take into account. In extradition relations not governed by a treaty, the granting authority has free discretion — it is not compelled to grant the request. Where a treaty applies, this discretion is bound by the international-law obligation to extradite; under the European Arrest Warrant there is, in principle, a duty to grant surrender (Section 79(1) IRG), and refusal is possible only under Section 83b IRG. A submission to the granting authority and the Federal Foreign Office can still avert the extradition.

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