'After Brexit No Constitutional Foundation to Extradite Germans to UK' - Lawyer

Berlin will reject any UK request for extradition of German citizens after Brexit, even if the UK leaves the EU with a deal, according to a Financial Times report over the weekend citing a notification submitted by Germany to the European Commission last week.

The publication noted that the only potential exceptions permitted are for requests from other EU member states made through the European arrest warrant system or an international court. Since 2010, London has filed nearly 1,800 requests for extradition through the European arrest warrant system, including 15 requests for the extradition of German citizens in connection with money laundering, drug trafficking and other crimes.

Sputnik discussed Germany's decision with Dr. Anna Oehmichen, partner at Knierim & Kollegen Rechtsanwälte, a law firm of seven lawyers based in Mainz specializing in white collar crime.

Sputnik: Germany has informed Brussels in an official notice that they will cease extradition of its citizens to Britain immediately after the UK's withdrawal from the European Union, what are the legal reasons behind the step?

Dr. Anna Oehmichen: You know what's important to note is, first of all, that Germany has only said that they will not extradite their own nationals anymore, they have not said anything about other extradition treaties, so it should be specified. You mentioned it but just not to cause confusion, the legal reasons behind this step is very simple: we have a Constitution and in our Constitution there is Article 16, which prohibits the extradition of German nationals to other countries.

So that's a protective article and once Germany ratified the European framework decision on the European arrest warrant system they had to change the Constitution and they changed it in that way that it said that now the extradition to other member states of the European Union is possible provided that the rule of law is observed. However, if England or the UK is no longer a member state of the EU, there is no constitutional foundation to extradite Germans nationals to the UK, to the country, we cannot. So in that sense, it will not be possible to extradite German nationals anymore.

Furthermore, after Brexit some people expect that the 1957 European Convention of Extradition will be put back into place, that's an international agreement that was agreed upon by several countries, the Counsel of Europe member states, and that was used before the European arrest warrant was introduced and in this instrument Germany also made a declaration, saying that the extradition of Germans from the Federal Republic of Germany to a foreign country is not permitted by virtue of Article 16 Paragraph 2 of the basic law, which is our Constitution. So, therefore, even if this convention should apply, it would still not be possible to extradite Germans under German law.

Sputnik: Thank you for clarifying that. Now in your view does Germany's decision to send this official notice to Brussels now signal the high likelihood of a no-deal Brexit, is this your feeling?

Dr. Anna Oehmichen: I do not believe that this notice should be read as a signal of a high or low likelihood of a no-deal Brexit, it was simply sent, in my view, in order to make Brussels aware of Germany's particular situation, the legal framework which we have in Germany so that Brussels knows that this will happen but it wasn't used in order to make any signal as to whether we will have a deal or a no deal regarding Brexit. Moreover, when I looked for this notice online under German news, I did not find any German newspapers interested in discussing the event, so it's simply a legal situation that was communicated to Brussels.

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Sputnik: It would be interesting to know, Anna, has there been any response from the European Union and Brussels with regard to Germany's stance on this?

Dr. Anna Oehmichen: I'm not aware of this, but I'm not working in Brussels so I wouldn't know necessarily.

Sputnik: In your view why has Germany made this decision now? How does it benefit from it?

Dr. Anna Oehmichen: I do not know the context of this official note so I could only speculate. Maybe Brussels asked all the member states to communicate their legal situation in the case of Brexit just to be prepared, and then Germany would simply only benefit in that sense that they're complying with what Brussels requested, or they may have done it of their own initiative, but I don't know the context so I cannot speculate on the political motives behind this notification.

Sputnik: Will Berlin be able to maintain this policy in the event of Britain's deal with the European Union and if so, how that be possible?

Dr. Anna Oehmichen: As you said in your article on this matter already, since 2010 there were only 15 German nationals extradited to the UK. So it's not got a lot of practical relevance and actually, I checked the statistics of the national crime agency of the UK and according to that, even in the year 2017-2018 not even one German citizen was requested by the UK, from Germany.

So I think the practical relevance of this doesn't have such an impact and therefore I don't think this Constitutional provision in Germany will largely affect the judicial cooperation in criminal matters with the UK. However, whether Germany will be able to continue this policy, what you call policy which is simply the German law, if Britain concludes a deal with the EU, it will, of course, depend on what will be agreed upon in this deal, namely, if this deal would allow for the extradition of nationals or not.

The views and opinions expressed by the speaker do not necessarily reflect those of Sputnik.