The suspicion underlying a European Arrest Warrant is, in principle, not reviewed. Where the grant of extradition is made subject to a guarantee of return for enforcement of the sentence, the bar to extradition based on life imprisonment (Section 83(1) no. 4 IRG) need not be examined in the case of extradition for prosecution.
Headnote 1: "In deciding on the admissibility of an extradition based on a European Arrest Warrant, the suspicion of the offence is, in principle, not subject to review."
Headnote 2: "The bar to extradition under Section 83(1) no. 4 IRG need not be examined in the case of extradition for prosecution where the grant decision is made subject to the condition of return for enforcement of the sentence."
What the case was about
The Netherlands requested, on the basis of a European Arrest Warrant, the extradition of the Turkish national M. U. for prosecution. The requested person has held political asylum status in Germany since 2019; he is married and the father of three daughters. He is accused of aiding and abetting (Art. 48 of the Dutch Criminal Code) a fatal shooting on 1 May 2025 in the Netherlands – he is alleged to have driven the man who was later killed to the scene.
The Public Prosecutor General granted the extradition subject to the condition of return for enforcement of the sentence. The Higher Regional Court (Oberlandesgericht, OLG) of Cologne had to rule on admissibility, on an objection (Gegenvorstellung) and on applications concerning extradition detention.
The decision
The Senate declares the extradition admissible – on the condition that return for enforcement of the sentence in Germany takes place at the requested person's wish. The objection against the preceding order is rejected, and the applications to lift extradition detention are denied; detention continues.
The court's reasoning
No review of the suspicion. Under a European Arrest Warrant, a review of the suspicion pursuant to Section 10(2) IRG does not, in principle, take place. An exception applies only where there are sufficient indications of abuse or of a breach of rule-of-law principles (Art. 25 Basic Law). No such indications existed here: the allegation was described with sufficient particularity in the warrant, and there were no concerns about the rule-of-law character of the proceedings.
Life-imprisonment bar left unexamined. Because the grant was made subject to the return guarantee, the bar under Section 83(1) no. 4 IRG did not have to be examined. In any event, the court found that Dutch law would satisfy the requirements: suspension is possible after 25 years, an automatic review takes place after 28 years, and there is in addition a clemency procedure structured as a court-like process with substantive criteria.
Treated on a par with a national. Because the requested person may serve the sentence in Germany at his own wish, he is placed on a par with a German national; accordingly, there is no bar to the grant under Section 83b IRG. The Senate affirmed a risk of flight despite his family and residence ties – on account of the substantial prison sentence he faces and indications of an intended return to Turkey.
It is also notable that the refugee recognition did not preclude the extradition: it concerned Turkey as the state of persecution, not the requesting EU Member State, the Netherlands.
Assessment
The decision shows how the return guarantee (cf. Art. 5 no. 3 FD-EAW, Section 80 IRG) renders examination of the life-imprisonment bar unnecessary by placing the requested person on a par with a national. The contrast with the Higher Regional Court of Schleswig's decision on Poland (1 OAus 10/26) is instructive: there, a return guarantee was precisely unable to dispel the concerns, because systemic deficiencies in detention conditions were at issue. Here the instrument works, because no systemic shortcomings of Dutch detention were in question.
The return guarantee is an effective but not a universal tool: it solves enforcement problems, not detention-conditions problems. Where the life-imprisonment bar or the national-equivalence bar (Section 83b IRG) is at stake, the guarantee can carry the extradition. Where, by contrast, systemic deficiencies of the prison system in the requesting state are in issue, it does not help – there the focus must be on reliable, prison-specific assurances and on Art. 4 of the EU Charter / Art. 3 ECHR.
Citation: OLG Köln, Order of 21 Jan. 2026 – 3 OAus 144/25.
Source: Case-law database NRWE (nrwe.justiz.nrw.de); ECLI:DE:OLGK:2026:0121.3OAUS144.25.00.
Related decision: For the opposite outcome see Higher Regional Court of Schleswig, Order of 13 May 2026 – 1 OAus 10/26 (systemic deficiencies in the Polish prison system; a return guarantee was not sufficient).