Fiches Belges

Surrender for prosecution is admissible if, under the law of the requesting Member State, the offence is punishable by a sentence of imprisonment or another sanction of a maximum of at least 12 months. Surrender for execution is admissible if a sanction involving deprivation of liberty of no less than four months is to be executed. Double criminality is not checked in cases of list offences. Surrender is not admissible in cases of “ne bis in idem”, lack of criminal responsibility due to age (minors under the age of 14 years), some kinds of in absentia judgements, life sentences without a review of execution before no more than 20 years have elapsed and lapse of time under German law, if there is German jurisdiction for the offence. Surrender may be refused if criminal proceedings for the same offence are conducted in Germany or have been terminated, precedence is given to a request for surrender/extradition made by a third state or in cases of habitual residents.

The FD on the EAW (FD 2002/584/JHA, amended by FD 2009/299/JHA) is implemented into German law in sections 78 - 83e of the Act on International Cooperation in Criminal Matters.

Competent for the decision on the surrender is the Higher Regional Court (Oberlandesgericht). The Prosecutor General's Office is competent for receiving EAWs, preparing and executing the court decisions. Local competence depends on the place where the person has been arrested (or, if not arrested yet, has been located).

German; Other languages are accepted, if the other Member State accepts EAWs in German issued by German authorities. There is no specific provision in German law regarding the time limit for receiving a translation of the EAW. There are two different opinions regarding the time limit in commentary books: 40 days (like Art 16 of the CoE Convention on Extradition) or 2 months (like the German law on International Cooperation in Criminal Matters for cases with no applicable international convention/treaty/agreement). Germany accepts transmission of EAW translations via SIS.

60 days after arrest of sought person (10 days in cases of simplified procedure). But a failure to keep this deadline has no effect on the proceedings. There is no maximum time limit for detention but the court has to evaluate the necessity of detention at least every two months.

A surrender of a German national for execution of a judgement is only possible with his consent. In order for surrender to be permitted for accessory offences in Germany, in principle the same conditions must be met as for a surrender with the exception of Art 2 nr. 1 FD EAW.