Provisional Extradition Detention

Function and legal basis

Provisional extradition detention under Section 16 IRG serves to secure the requested person before a formal extradition request is on file (for the provisional arrest and the procedure following apprehension: Sections 19 et seq., 22 IRG). It requires that a foreign arrest warrant or a corresponding alert (SIS, Interpol Red Notice) be present and that there is a risk of flight from extradition. It is ordered by decision of the Higher Regional Court (Oberlandesgericht, OLG) on application by the public prosecutor's office at the OLG.

Time limits

Provisional extradition detention is limited in time: under Section 16(2) IRG, the extradition arrest warrant must be lifted if the extradition request and the extradition documents have not been received within two months — or, in the case of requests from non-European states, within three months; within the scope of the European Convention on Extradition (ECE), provisional extradition detention may not exceed 40 days (Article 16(4) ECE). These maximum periods cannot be extended; once the request is received later, however, a new extradition arrest warrant may be issued under Section 15 IRG. In the case of the European Arrest Warrant, no separate formal request is required: the EAW or the SIS alert itself counts as the extradition request (Section 83a IRG).

Legal remedies

Against the arrest warrant for provisional extradition detention, the requested person may raise objections at any time, on which the OLG decides (Section 23 IRG); in addition, the OLG reviews the continuation of detention of its own motion every two months (Section 26 IRG). If the conditions for detention no longer exist or the extradition is declared inadmissible, the arrest warrant must be lifted under Section 24 IRG. As a last resort, here too a constitutional complaint with an application for an interim injunction before the Federal Constitutional Court (Bundesverfassungsgericht, BVerfG) remains available.

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