International criminal cases

More and more frequently, the lawyer for criminal law is confronted with international issues in a specific mandate, especially if a criminal prosecution against the client takes place in different states, the client has been imprisoned abroad or another state requests his extradition. Points of contact with foreign legal systems arise in the context of mutual legal assistance as well as in investigations against multinational companies.

The transnational use of European investigative authorities - such as the Anti-Fraud Office (OLAF), Europol or Eurojust - must be dealt with competently and effectively. However, this requires detailed specialist knowledge and the corresponding experience of a defence lawyer in this area. A modern criminal defence lawyer does not just sit at his desk - he must be mobile and flexible.

Criminal defence in international criminal proceedings

Many of our clients live abroad. We often advise our clients abroad - throughout Europe, but also in South America, Central America, Asia, North America. There can be many reasons why the client does not come to us in one of our offices. The most important reason is that the client has to fear being arrested when entering Germany or the Schengen area. If the client cannot come to us, we will come to him. We have already defended clients who were wanted by German law enforcement or even taken into extradition custody in many countries around the world.

For example, we have already acted in the context of international criminal defence in the following countries: Andorra, Argentina, Armenia, Belgium, Brazil, Bulgaria, Chile, China (including Hong Kong), Colombia, Costa Rica, Croatia, Cuba, Denmark, Dominican Republic, Ecuador, Egypt, England, Estonia, Finland, France, Gambia, Georgia, Greece, Guatemala, Iran, Ireland, Israel, Italy, Japan, Croatia, Cuba, Lichtenstein, Lithuania, Luxembourg, Mexico, Monaco, Netherlands, Norway, Austria, Peru, Poland, Portugal, Romania, Russia, Switzerland, Slovakia, Spain, Thailand, Czech Republic, Turkey, Ukraine, Hungary, USA, Venezuela, United Arab Emirates, Vietnam and Belarus.

A constantly increasing number of appeals to the European Court of Human Rights (ECHR) following national criminal proceedings also testifies to the "internationalisation" of criminal defence. The modern lawyer works argumentatively with the rights of the accused under the European Convention on Human Rights and the case law that has been handed down in this regard.

Defence in proceedings with a European Arrest Warrant

The European Arrest Warrant (EAW) is an arrest warrant issued in one EU Member State for the purpose of arresting and surrendering a wanted person by another EU Member State. The basis of the EU arrest warrant is the EU Framework Decision on the European Arrest Warrant of 13 June 2002 (RbEuHb), which is intended to considerably simplify the extradition of suspects or criminals already convicted in another EU country within the European Union. Even own citizens can be extradited to other EU countries. Under certain conditions, extradition can even take place if the offence is not punishable under the law of the extraditing state or is already time-barred.

The German implementation of the EU arrest warrant law has already been declared unconstitutional "in toto" by the Federal Constitutional Court on 18 July 2005 (2 BvR 2236/04) - and rightly so. Subsequently, the legislator made improvements. The valid EU arrest warrant law is regulated in an independent section within the Law on International Mutual Assistance in Criminal Matters (IRG).

However, the opinion of the law firm Nobis - Rechtsanwälte für Strafrecht continues to be that the new version of the EU arrest warrant can also lead to unacceptable decisions and is therefore also unconstitutional. Decisions are possible that clearly violate fundamental rights. This must be resisted with all available legal means. The defence of the most elementary rights - fundamental rights - should be the top priority for every lawyer. We fight for these rights! We fight for your (freedom) rights!

Any EU citizen can fall into the clutches of the European Arrest Warrant, not only serious criminals. There is the case of the man from Lower Bavaria who was wanted by the public prosecutor's office in Salzburg with a European Arrest Warrant. The charge: an everyday offence that would never lead to a custodial sentence in Germany. Without any examination of suspicion or guilt, the accused was arrested in Germany and handed over to the Austrian authorities after 28 days in custody. The judge in Austria then acquitted the accused at the trial due to lack of suspicion.

Without further verification of the facts, the citizen can be transferred from his home country under EU arrest warrant law upon presentation of 32 listed offences.

Arrest on EU Arrest Warrant?

You can already be arrested if you are only suspected of having done something unlawful. Here, too, one's own state does not check whether the suspicion is justified - it first extradites. This approach, however, violates the principle of the rule of law "Nulla poena sine lege" ("No law, no punishment"), which states: A state may only punish acts that it has itself defined as wrongdoing.

The assets of a suspect can also be confiscated on the mere assumption that these assets originate from a criminal offence. An internal EU paper on Schengen judicial cooperation as "an integral part of the EU Treaties" also says: "As regards the enforcement of criminal judgments and other court decisions, the aim is to ensure that court decisions from one Member State are enforced throughout the EU - this includes, for example, the imposition of fines, the seizure of assets or, in the case of criminals, the deprivation of certain rights." These measures can already be requested by the foreign court when the EU arrest warrant is drawn up.

We are of the opinion that - even if this is not explicitly stated in the legal text of the new version of the European Arrest Warrant - if the ruling of the Federal Constitutional Court of 18 July 2005 is interpreted correctly, the granting authority (Public Prosecutor General's Office) must always carry out a comprehensive proportionality test.

German nationals are particularly protected against extradition by the fundamental right under Article 16 of the Basic Law. Although this protection can be restricted for certain cases under Article 16 (2) sentence 2 of the Basic Law, this restriction is subject to constitutional obligations. Article 16 GG is a right of freedom of high rank. As a matter of principle, every citizen - insofar as he or she is in the territory of the state - is to be protected from the uncertainties of a judgement by a foreign legal system and the disproportionately severe disadvantages that may result from this.

The principle of subsidiarity (Article 23 (1) of the Basic Law) must also always be examined. The principle of subsidiarity is only preserved if it is also taken into account by the executive power in the concrete application of the law in individual cases. The principle of subsidiarity, which is standardised in Article 23 (1) sentence 1 of the Basic Law, controls the distribution of competences and tasks between the European Union and its Member States with a fundamental preference for the national level. According to Article 23 (1) GG, the national level, which is thus closer to the citizen, should enjoy priority (cf. Isensee, Subsidiaritätsprinzip und Verfassungsrecht). The principle of subsidiarity protects the competences of the member states and guarantees the right of self-determination and the individual freedom of the individual.

In our view, this means that extradition of German citizens to member states of the European Union for the purpose of criminal prosecution can only be considered if the realisation of the state's right to criminal prosecution by the German judiciary fails for factual reasons that are comprehensible in the individual case. Only to this extent may German citizens be extradited. Only - according to our legal opinion - if a claim for prosecution should fail for factual reasons, would there be room for extradition if further conditions were met and examined.

Whether the new regulations on the European Arrest Warrant take sufficient account of the principle of proportionality with regard to Article 16 (2) of the Basic Law, Article 23 (1) sentence 1 of the Basic Law in the case of extraditions, is a constitutional question, the answer to which is not provided by the Framework Decision on the European Arrest Warrant, but by the Basic Law. Thus, not only the requirements according to the IRG, which is the German corollary of the European Arrest Warrant Act, have to be examined, but also and in particular - in our view - the proportionality on the basis of the fundamental rights. A balancing of the interests of effective criminal prosecution pursued with the Framework Decision and its implementation and the interests of any witnesses and victims on the one hand, and the fundamental rights interests of the extradited person on the other, must also be taken into account.

Extradition to the requesting state is to be refused in cases in which the burdens associated with criminal proceedings abroad for the prosecuted person are out of proportion to the advantages that could be listed for prosecution in the requesting state. Even if this cannot be inferred from the wording of the IRG, in our opinion, with a corresponding interpretation in conformity with the constitution - provided one does not even assume a renewed nullity of the law - it is to be demanded that the suspicion of the offence is also examined.

The way to mutual recognition of arrest warrants cannot be at the expense of fundamental rights.