Simplified Extradition: Consent and Legal Effects

By Dr. Julius Hagen, Attorney at Law

What is simplified extradition?

Simplified extradition allows surrender to a requesting state without the full formal extradition process. It is not limited to European Arrest Warrant cases. After receiving judicial advice, the requested person declares that they consent to surrender.

As a general rule, consent to simplified extradition should not be given immediately. In particular, it is usually not advisable to consent at the first judicial appearance before the Amtsgericht (local court): the complete request, possible grounds for refusing extradition, further proceedings and the effect on speciality often have not yet been examined. Consent should generally be considered only once these issues are clear and defence in the requesting state is prepared.

Under section 41 IRG the procedure generally presupposes an extradition arrest warrant, either under section 15 IRG or a provisional warrant under section 16 IRG. The person may make the declaration even if not in custody. The complete formal request need not necessarily already be accompanied by all documents.

Advice, interpretation and legal assistance

Consent is declared before a judge and recorded in the judicial minutes. The judge must explain the practical consequences; repeating the statutory wording is not enough. A person who does not sufficiently understand German must be advised through an interpreter. The person must also be informed of the possibility of legal assistance.

The declaration is generally irrevocable. A decisive change in the factual or legal situation may nevertheless require renewed consideration of its validity or of whether surrender remains permissible.

Which review may be lost

Consent waives the formal extradition process. It may also affect the protection of speciality under section 11 IRG. The decision therefore requires a reliable picture of which proceedings and allegations the requesting state actually intends to pursue. Simplified extradition also removes the judicial review of the preliminary authorisation decision under section 79(2) IRG.

Before making the declaration, counsel should have the request, the underlying domestic decision, the German extradition file and reliable information about proceedings in the requesting state. Further warrants, connected allegations, possible bars to surrender and effects on German proceedings should be checked.

Specific features of a European Arrest Warrant

Where an EAW is involved, section 83c(3) IRG provides that the surrender decision should be taken no later than ten days after consent. This is a timetable for the decision, not a promise that physical surrender will occur on day ten. A separate surrender date is arranged after authorisation.

In the EAW system, speciality is governed at EU level by Article 27 of the Framework Decision. The effect of consent must therefore be assessed against the specific EAW, the surrender decision and the other proceedings in the issuing state. A blanket statement that consent can never affect speciality would be incomplete.

When consent may be sensible

Early surrender may be reasonable where the German legal position has been examined, the scope of the foreign proceedings is known and defence counsel in the requesting state is ready to act immediately. It may reduce time spent in extradition detention and uncertainty about the surrender date.

The trade-off is less time to obtain foreign files, translations and evidence supporting possible grounds for refusing surrender. Without reliable coordination with counsel in the requesting state, consent may expose the person to an unmanageable set of proceedings.