Interim Relief in Extradition Proceedings

Overview

In extradition proceedings, questions of interim relief can arise at various levels: in the domestic proceedings before the Higher Regional Court (Oberlandesgericht, OLG) and the Federal Constitutional Court (Bundesverfassungsgericht, BVerfG), and at the European level before the European Court of Human Rights (ECtHR). In each case the aim is the provisional suspension or prevention of an imminent extradition.

Interim injunction by the Federal Constitutional Court

Under Section 32 BVerfGG the Federal Constitutional Court may issue interim injunctions. In extradition law this is used to suspend an imminent extradition until a constitutional complaint can be examined. The application must show conclusively that the extradition violates fundamental rights under Article 19(4) of the Basic Law, Article 2(1) of the Basic Law in conjunction with Article 6 ECHR, or other protective standards. In such proceedings the Federal Constitutional Court frequently decides at very short notice.

Detention review and suspension of detention

Against the extradition arrest warrant itself, a detention review under Section 26 IRG is available. The Higher Regional Court thereby examines the formal requirements and whether grounds for detention exist. A suspension of detention under Section 25 IRG may be considered where there is no risk of flight and less restrictive measures suffice.

Rule 39 ECtHR

At the European level, Rule 39 of the ECtHR's Rules of Court offers the possibility of applying for interim relief directly to the Court in Strasbourg. The application must be submitted in the prescribed form and set out an imminent, irreparable violation of the ECHR — in particular Article 3. Measures under Rule 39 bind the member states directly.

Practical significance

Interim relief is especially important in extradition matters because extraditions create irreversible facts. Lawyers must be able to act simultaneously at several levels — detention review, application to the Federal Constitutional Court, and complaint to the ECtHR — to ensure effective protection. The time available is often very short, since extraditions can be carried out at short notice.

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