OLG Schleswig holds a surrender to Poland under a European Arrest Warrant inadmissible: reports of the Polish National Mechanism for the Prevention of Torture (KMPT) give rise to a strong suspicion of systemic deficiencies in the prison system. Blanket assurances no longer suffice; what is required is a reliable assurance naming a specific, rights-compliant detention facility.
The principle of mutual trust within the common legal area of the EU member states no longer applies where, on the basis of specific indications, a suspicion of systemic deficiencies in the detention regime of a requesting state must be feared (headnote 4). Nor can the imposition of a return-surrender reservation dispel the concrete concern of systemic deficiencies (headnote 5).
What the case was about
The Division had initially ordered extradition detention against the Polish requested person and declared the surrender for the purpose of prosecution under a European Arrest Warrant admissible. The requested person then applied, under Section 33(2) IRG, for a fresh decision and for the surrender to be declared inadmissible. He submitted that he faced conditions in the Polish prison system that were incompatible with human dignity and even life-threatening.
In support, he produced inspection reports of the National Mechanism for the Prevention of Torture (Krajowy Mechanizm Prewencji Tortur — KMPT), from which systemic deficiencies were said to emerge. Torture or physical ill-treatment had been established in at least 13 correctional facilities, as of 2026 also in Warszawa-Grochow and Suwalki, in one case there with fatal consequences.
The Office of the Public Prosecutor General maintained the surrender and offered a return-surrender reservation; the pre-trial detention was to be carried out in Warszawa-Sluzewiec. The Polish Ministry of Justice stated that the demand for a guarantee not to place a person in a particular facility was "untenable" and "devoid of any legal basis"; assurances did not have to be given.
The decision
OLG Schleswig declares the surrender to Poland inadmissible under Section 33(2) IRG. The Division's earlier orders are declared moot; the requested person is to be released from extradition detention without delay.
Notably, the Division expressly abandons its own line — taken just eighteen months earlier and grounded in the principle of mutual trust.
The decisive reasons
In the Division's view, the detention regime of the Republic of Poland gives rise to a suspicion of systemic deficiencies resulting in detention conditions that are not compatible with human rights — a suspicion that is not dispelled by the declarations of the Polish authorities.
By its order of 19 December 2024 (1 OAus 29/24), the Division had still held that known abuses in individual facilities did not render a surrender inadmissible as long as no systemic deficiencies were discernible, and that individual facilities could be excluded from the declaration of admissibility. That assessment, rooted in the "principle of mutual trust," "no longer applies," however.
The Division found the photographs from the KMPT reports particularly striking:
- an inmate on a bed without a mattress;
- an inmate in full restraint; hands twisted despite being shackled;
- being held by the neck during a strip search;
- sleeping with hands fixed behind the back, the light switched on and waking every two hours;
- a conversation with a psychologist "in a security cell with a substantial staff presence";
- and finally "an iron cage whose dimensions allow only standing or sitting."
"It is precisely the last photograph," the Division stated, "that shows that devices are even kept on hand which are designed from the outset for treatment of prisoners that is incompatible with human dignity." There is thus a strong suspicion of systemic deficiencies affecting "the entire national detention situation."
These doubts are not shaken by the declarations of the Polish authorities. Poland had refused to give a specific assurance, since the facility is decided only by the enforcement commission after surrender. In the absence of an express assurance, it cannot "even be assumed that the assurance given as regards the facility in which the pre-trial detention is to be carried out is sound. A return-surrender reservation is therefore likewise unable to provide any security." Unlike in 2024 (three facilities excluded), it would now be impracticable to exclude 13 or more facilities from the declaration of admissibility, especially as no efforts to remedy the deficiencies were apparent. The risk of flight and the return-surrender reservation therefore no longer matter.
Significance for practice
The decision applies the two-stage review developed by the Court of Justice of the European Union (ECJ) in Aranyosi and Căldăraru (C-404/15 and C-659/15 PPU) to an EU member state and follows it through consistently: where the principle of mutual trust has been shaken by objective, reliable and current information — here the KMPT reports — a blanket assurance of human-rights-compliant treatment does not suffice; a facility-specific assurance is required. The express abandonment of the Division's own case law within 18 months is a clear signal that "excluding individual facilities" reaches its limit as a remedial model once the deficiencies affect the entire detention landscape.
The order confirms the value of substantiated, source-based submissions — KMPT and CPT reports, ECtHR pilot judgments — and at the same time removes the basis for the practice of using a mere return-surrender reservation to "override" fundamental-rights concerns. An important point of reference is the more recent line of the Federal Constitutional Court (Bundesverfassungsgericht, BVerfG) on the duty to investigate where violations of Article 3 ECHR / Article 4 of the EU Charter are threatened (cf. BVerfG NJW 2024, 2307 = 2 BvR 1694/23).
Citation: Schleswig-Holstein OLG, order of 13 May 2026 — 1 OAus 10/26.
Source: Schleswig-Holstein case-law database (juris); ECLI:DE:OLGSH:2026:0513.1OAUS10.26.00.