Proportionality as a Bar to Extradition

Legal basis

The principle of proportionality (Article 20(3) of the Basic Law, Article 49(3) of the EU Charter) also applies in extradition law. In EAW law, a proportionality review of the surrender is not expressly enshrined in Framework Decision 2002/584/JHA; it follows from EU fundamental rights (Article 52(1) of the EU Charter) and the case law of the ECJ; in national extradition law it follows from the rule-of-law principle. The Higher Regional Court (Oberlandesgericht, OLG) reviews proportionality within the framework of Section 73 IRG and the relevant special provisions.

Case groups

Typical constellations in which proportionality is reviewed: (1) minor offenses — a low sentence weighed against the heavy burden of extradition (being torn from social ties, small children, illness); (2) lapse of time — a long interval between the offense and the request where the person has integrated in Germany in the meantime; (3) prosecution in Germany — where Germany could prosecute the offense itself; (4) health circumstances — unfitness for detention, serious illness.

Case law of the ECJ

In Aranyosi/Căldăraru (C-404/15 and C-659/15 PPU) the European Court of Justice (ECJ) made clear that the execution of an EAW must be postponed — and the surrender procedure ended where appropriate — if there is a real risk of inhuman or degrading detention conditions, after it had initially declined to recognize a fundamental-rights-based refusal in Radu (C-396/11). At the national level, the Federal Constitutional Court (Bundesverfassungsgericht, BVerfG) has repeatedly stressed that the Higher Regional Court must take all relevant circumstances — including personal ones — into account in its proportionality review.

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