Why the refusal in Poland did not prevent the arrest in Croatia

The course of proceedings

On 3 June 2024 the investigating judge at the Federal Court of Justice issued a European arrest warrant against a Ukrainian national whom the Federal Public Prosecutor General refers to as Vladimir Z. According to the allegation he was a trained diver and belonged to the group that, in September 2022, attached explosive devices to the Nord Stream 1 and Nord Stream 2 pipelines near the Danish island of Bornholm. The Federal Public Prosecutor General charges him with jointly causing an explosion by means of explosives (Section 308(1) StGB), anti-constitutional sabotage (Section 88(1) no. 3 StGB) and destruction of structures (Section 305(1) StGB).

He was arrested in a suburb of Warsaw at the end of September 2025. On 17 October 2025 the Sąd Okręgowy w Warszawie refused surrender to Germany and lifted extradition detention; the accused was released the same day. The decision rested on two pillars. The court considered the German request insufficiently substantiated. In addition, it assessed the destruction of critical infrastructure belonging to the aggressor by a citizen of a state engaged in a defensive war as a military act incapable of constituting a criminal offence — in peacetime, the judge said expressly, the same conduct would be punishable. The Polish prosecution service let the appeal period expire, and Prime Minister Tusk publicly declared the matter closed.

On the morning of 19 August 2026 Croatian officers arrested the same man in Pula, on the basis of the same 2024 warrant. A day later the investigating judge of the Županijski sud u Puli ordered extradition detention on grounds of flight risk. The accused has not consented to simplified surrender. His defence counsel have announced an appeal and intend to rely on the Polish refusal of the very same surrender.

The warrant remains in force

Framework Decision 2002/584/JHA nowhere provides that a European arrest warrant loses its effect when a Member State refuses execution. Under Art. 1(2) every Member State executes any European arrest warrant, and the decision is taken by the respective judicial authority for its own territory. The assessment made by a court in another state does not bind it.

The grounds for refusal in Arts. 3, 4 and 4a are exhaustive, and the fact that another Member State has already refused surrender is not among them. In the proceedings concerning the Catalan politicians the Court of Justice of the European Union held that an executing authority may refuse surrender only on the grounds provided for by the Framework Decision, and that successive European arrest warrants against the same person are permissible after one Member State has refused execution (CJEU, judgment of 31 January 2023, C-158/21 — Puig Gordi and Others). The decision in C-268/17 (AY) points the same way: the executing judicial authority must decide on every warrant transmitted to it, even where an earlier warrant concerning the same person and the same acts has already been ruled on.

The Court draws a limit where the refusal rests on a fundamental rights assessment under Art. 1(3): in that case the issuing authority may not issue a fresh warrant so long as the circumstances remain unchanged. Whether that limit also bars execution by another Member State remains open; the Court has decided only the case of the same executing state.

The alert continues to operate

In practical terms the arrest turns on the wanted-person record in the Schengen Information System — in the legislation it is called an alert. Under Art. 31(1) Reg. (EU) 2018/1862 it has the same effect as a European arrest warrant itself. Where a judicial authority has refused execution on a ground for non-execution, its Member State asks the issuing state under Art. 25(1) Reg. (EU) 2018/1862 to add a flag. Art. 3(8) of the same Regulation defines a flag as the suspension of the validity of an alert at national level, and under Art. 24(1) its effect is that the action requested is not taken in the territory of the flagging state. It does not arise automatically; it has to be requested.

The record itself remains in place and continues to operate in the other Member States. It is deleted once the person has been surrendered, once the underlying judicial decision has been revoked, or where the issuing state does not retain it upon review; the review period is five years (Arts. 53(2), 55(1)). A refusal is not among those grounds. For the person concerned this means a security that ends at the national border.

The military assessment does not carry within the EU procedure

Vis-à-vis third states the reasoning of the Warsaw court could at most be put to work through Section 6(1) IRG, that is, as a political offence. Section 7 IRG does not help even there: it covers only acts consisting exclusively in the breach of military duties, such as desertion — blowing up a gas pipeline is not among them. In extradition traffic with EU Member States both provisions are excluded in any event: Section 82 IRG expressly disapplies them where Germany is the executing state. The proceedings in Pula are governed by Croatian implementing law, and the reason there is the same: the Framework Decision itself knows no ground for refusal relating to military or political offences; they do not appear in the exhaustive catalogues of Arts. 3, 4 and 4a.

Recital 12 of the Framework Decision does record, however, that surrender may be refused where objective indications show that the warrant serves to prosecute a person on account of their political opinions. That is no separate catalogue ground but an instance of the fundamental rights review under Art. 1(3), and the threshold is high: the Court of Justice requires objective material and a concrete risk in the individual case.

The list rule applies in addition. Sabotage is the last of the thirty-two categories of offence in Art. 2(2) of the Framework Decision. Where the issuing state assigns the act to one of those categories and its law provides for a maximum penalty of at least three years, verification of double criminality falls away — and with it the route by which an executing court might introduce its divergent assessment of the merits. The remaining catalogue grounds are unaffected, among them the ground for offences committed outside the territory of the issuing state where the executing state could not itself prosecute comparable extraterritorial offences (Art. 4(7)(b)), and limitation under the law of the executing state where its own criminal law had jurisdiction over the acts (Art. 4(4)).

The counter-position of the Federal Court of Justice

There is no published German court decision concerning Vladimir Z. himself. There is one in the parallel proceedings against Serhii K., prosecuted separately, who was arrested in Italy in August 2025 and surrendered to Germany on 27 November 2025, following two decisions of the Corte d'appello di Bologna and the final decision of the Corte di Cassazione of 19 November 2025.

The Third Criminal Panel of the Federal Court of Justice dismissed his appeal against detention by order of 10 December 2025 (StB 60/25) and addressed the assessment under international law. In doctrinal terms it classifies the law of armed conflict differently from what the common catchphrase of "combatant immunity" suggests: participation in an act of harm that is lawful under international law operates as a ground of justification excluding criminal liability, rather than merely creating a bar to prosecution. On the panel's assessment that ground of justification does not apply here, for two reasons. On the present state of knowledge the perpetrators acted, with high probability, covertly and without being distinguishable from civilians; combatant status requires under Art. 1 of the Hague Regulations and Art. 4(A)(1) and (2) of Geneva Convention III a fixed distinctive sign recognisable at a distance and the carrying of arms openly, and that was absent even if those involved belonged to the Ukrainian armed forces. The panel further regards the pipelines, on the present state of knowledge, as civilian infrastructure that may not be attacked under Art. 52(1) sentence 1 of Additional Protocol I — irrespective of ownership and operating arrangements. Its assessment thus stands directly opposed to that of the Warsaw court.

Two clarifications belong here, because both are regularly garbled in reporting. The panel expressly left open the question of a war crime under Section 11 VStGB; it did not arise for the detention question. Anyone writing that the Federal Court of Justice affirmed or denied a war crime misstates the order. And on the charge of anti-constitutional sabotage under Section 88 StGB the panel voiced doubts: the circumstances made it not far-fetched that effects on the internal security of the Federal Republic were merely accepted rather than intended, which does not suffice for liability under Section 88(1) StGB. It based detention on Sections 308(1), 305(1) StGB and, going beyond the warrant, on Section 316b(1) no. 2 StGB. On 30 June 2026 the Federal Public Prosecutor General preferred charges against Serhii K. before the state protection panel of the Hanseatic Higher Regional Court in Hamburg, relying on Section 11(1) sentence 1 no. 2 VStGB alongside Sections 308(1), 305(1), 316b(1) no. 2 StGB. The question left open thus moves to the centre of the trial.

Nothing follows from this directly for the proceedings in Pula. The decisions concerning Serhii K. do not bind the Croatian court, and no Croatian decision on the merits has been given. They do show which arguments the German side holds, should the assessment under international law be advanced again in the surrender proceedings.