Berlin warns it will stop extradition of Germans to UK after Brexit

Germany will stop the extradition of its citizens to Britain immediately after Brexit, even if the UK leaves the EU with a deal, according to a formal notification Berlin has given Brussels.

The German decision, submitted to the European Commission last week, underlines the challenges Britain and the EU face in maintaining security co-operation at current levels after the legal rupture of Brexit.

Under its constitution, Germany has strict limits to the extradition of its nationals. The only potential exceptions permitted are for requests from other EU countries, which are made via the European Arrest Warrant, or to an international court.

This means Berlin will reject any British requests to arrest German nationals after Brexit, even if a planned 21-month transition period comes into force.

During the transition period — an integral part of Theresa May’s deal with Brussels that can be extended to the end of 2022 — the UK would still apply EU law in full and stay under European Court of Justice jurisdiction.

One EU official familiar with the case said that the German notification on extradition was “not a surprise” and was provided for in the UK exit treaty. But the official added that it was a “sign of things to come” when Brussels and London try to find ways to overcome obstacles to continuing police and crime co-operation.

Since 2010, the UK has made requests for the extradition of almost 1,800 suspects via the European Arrest Warrant. This included 15 German nationals, who were sought for offences such as child sexual offences, money laundering, fraud and drug trafficking. The European Arrest Warrant process can take as little as 48 days to complete in contested cases.

Britain and the EU are aiming to negotiate ambitious extradition arrangements to replace the existing regime after Brexit, with streamlined arrangements and time limits to ensure suspects and convicts are surrendered “efficiently and expeditiously”.

But the two sides will need to find ways around a host of legal obstacles that once snarled up extradition requests in Europe, when cases often took years to complete. These include bans on the extradition of a country’s own nationals, such as in Germany, or for political offences, which caused tension between Ireland and UK during the Troubles in Northern Ireland.

“Extraditing own nationals is a perk of the European Arrest Warrant, only open to EU members, and once Britain leaves the EU, it may cause serious legal and constitutional headaches in several capitals,” said Camino Montera-Martinez, an analyst at the Centre for European Reform, a think-tank.

“Whether there is a deal or not, EU countries are free to refuse to send their own nationals to Britain and I expect some will make us of that freedom.”

Mrs May recently acknowledged in a letter to Jeremy Corbyn, the Labour leader, that it would be a challenge to avoid “a reduction in joint [EU-UK] security capabilities”. She noted “the EU’s position that, as a third country outside of the Schengen area and without free movement, there are restrictions on the UK’s ability to participate in some EU tools and measures.”

The example of Norway, which is considerably more integrated with the EU than Mrs May wants Britain to be, highlights some of the difficulties.

Even though it is part of the EU’s Schengen free travel area and applies EU law, Oslo has spent more than a decade negotiating a version of the European Arrest Warrant. The arrangements to surrender a person for prosecution or punishment have still not come into force and will include exceptions for political cases and some own nationals.

The House Commons home affairs select committee concluded last year that, if similar exemptions were applied to the UK, it “would mean that EU countries could refuse to extradite suspected terrorists to the UK if their crimes are regarded as political in nature”.

Mrs May’s draft withdrawal treaty already includes a clause allowing an EU member state to stop extraditions of own nationals to Britain during the transition period if it is contrary to its “fundamental structures”. In addition to Germany, other countries with potentially relevant limits on extraditions include Slovenia, France and Romania.

While Germany has made dozens of amendments to its constitution, Berlin decided that it was not worth seeking the required two-thirds parliamentary majority to adjust its extradition regime for Brexit.

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