Національна Асоціація Адвокатів УкраЇни - Extradition during wartime: when the risks outweigh the request

When State requests extradition during war, the court of the receiving State must not review the suspicion but rather weigh the risks: whether the person is in danger of death, serious harm or inhumane treatment. As practice varies, a mistake in extradition strategy can cost dearly.

In accordance with the European Convention on the Extradition and the practice of European Court of Human Rights, the court considering extradition request has the right to refuse to extradite a person if circumstances are established that indicate existence of actual risks to his/her life, physical safety or violation of other fundamental rights. A fairly common ground for refusal of extradition is proven political persecution or an attempt to bring a person to criminal liability for the act that is not a crime in the State considering the request.

Analysis of extradition cases allows us to conclude that the key ground for refusal to extradite is existence of legitimate risks of violation of the rights and guarantees established by Art. 2 "The Right to Life" and Art. 3 "Prohibition of Torture" of the Convention for the Protection of Human Rights and Fundamental Freedoms. These two articles set boundaries of permissible extradition and standards for verifying facts and circumstances that may indicate the presence of said risks.

At the same time, temporary protection that many Ukrainians in Europe received does not grant immunity from extradition. It should also be considered that national court does not review and/or assess the suspicion or charges, does not evaluate the evidence of a person's guilt. And when the defense disregards this simple truth, it ends up with a negative result for the client.

This is especially critical when the extradition review is conducted within written proceedings. For example, in Germany, extradition cases are considered by the Higher Regional Court (Oberlandesgericht) in written proceedings, where the court assesses justification of extradition request and existence of risks on the basis of evidence provided. Therefore, parties are deprived of the opportunity to assess the court’s reaction and change the defense tactics.

Instead, in Greece, this category of cases is considered by courts of appeal, where all levers of defense can be exercised, including involvement of experts and specialists. Prosecutors supporting extradition request may not fully understand all the procedural issues of international cooperation that should be used. Thus, in one case, the Prosecutor General's Office, in violation of territorial jurisdiction, noted in the extradition request that the person of interest would be placed in a pre-trial detention facility away from active hostilities. But this wording is contrary to the national criminal procedural legislation, which excluded such a possibility, and that drew attention of the local court.

The court may refuse the extradition request if the defense shows that international wanted notice issued in consequence of systemic legal violations in Ukraine, or that circumstances in the requesting State may endanger the life and safety of the requested person.

We should keep in mind that international legal assistance in extradition matters includes three components:

Presence of procedural violations, preceding international wanted notice publication, is essential, because it testifies to the fact that the State, already at the initial stage of international cooperation in criminal matters, resorted to violations of the foundations that comprise the system of the core European values in the field of justice.

Establishing these circumstances will provide the basis for further defense at the next trial stage, namely substantiating facts and circumstances pointing to credible threat to life and physical safety in the requesting State.

One of such circumstances, which may lead to refusal of extradition, may be the country's engagement in a military conflict and confirmed facts of missile and bomb strikes on the territory of that country.

Thus, the Court of Appeal of Thessaloniki (Greece) in case No. 508/2025 concluded (decision of 27.08.2025) that the right to life and the prohibition of inhumane treatment are absolute and are not subject to restriction even in a state of emergency or military conflict. The Court expanded the interpretation and application of the conventional guarantees for life and prohibition of torture and did not limit itself to the risks of detention in poor conditions (pre-trial detention), further stated that the very presence of a person in the war zone is already an independent factor that creates a risk to life.

What is conceptually new in European judicial practice is that the court concluded that even the presence of a psychological aspect of the risk can lead to refusal of extradition. The court emphasized that a protracted stay in conditions of constant threat of missile and bomb strikes creates a state of continuous fear for life and therefore can be qualified as inhumane treatment within the meaning of Art. 3 of the Convention. These circumstances became the basis for refusing to extradite a citizen of Ukraine.

Instead, the Higher Regional Court of Dresden (Germany) in the case of AZ: 4 Ars 11/24 allowed the extradition of a Ukrainian to his homeland, although he insisted that in Ukraine he will be called to military service, which he did not intend to do according to his convictions. The judges justified their decision by the fact that conscientious objection to military service is not an obstacle to extradition if the state concerned was subjected to an armed attack in violation of international law. The person under extradition review referred only to the fact of unwillingness to serve in the military according to his convictions; at the same time, the circumstances of credible threat to life and physical health as a result of granting extradition request were ignored.

Thus, extradition in context of an ongoing armed conflict cannot be considered as a purely formal procedure of international cooperation since it is associated with risks to conventional human rights. European practice demonstrates the lack of a unified approach to solving this issue, and the need for a clearly defined individualized strategy, which can become decisive in resolving the issue of transferring a person to the State.

Volodymyr Matsko

member of UNBA Committee for criminal law and procedure

	16:59 Tue 10.03.26
Extradition during wartime: when the risks outweigh the request
Home quote «European practice demonstrates the lack of a unified approach to solving this issue, and the need for a clearly defined individualized strategy, which can become decisive in resolving the issue of transferring a person to the State», - advocate V. Matsko When State requests extradition during war, the court of the receiving State must not review the suspicion but rather weigh the risks: whether the person is in danger of death, serious harm or inhumane treatment. As practice varies, a mistake in extradition strategy can cost dearly. In accordance with the European Convention on the Extradition and the practice of European Court of Human Rights, the court considering extradition request has the right to refuse to extradite a person if circumstances are established that indicate existence of actual risks to his/her life, physical safety or violation of other fundamental rights. A fairly common ground for refusal of extradition is proven political persecution or an attempt to bring a person to criminal liability for the act that is not a crime in the State considering the request. Analysis of extradition cases allows us to conclude that the key ground for refusal to extradite is existence of legitimate risks of violation of the rights and guarantees established by Art. 2 "The Right to Life" and Art. 3 "Prohibition of Torture" of the Convention for the Protection of Human Rights and Fundamental Freedoms. These two articles set boundaries of permissible extradition and standards for verifying facts and circumstances that may indicate the presence of said risks. At the same time, temporary protection that many Ukrainians in Europe received does not grant immunity from extradition. It should also be considered that national court does not review and/or assess the suspicion or charges, does not evaluate the evidence of a person's guilt. And when the defense disregards this simple truth, it ends up with a negative result for the client. This is especially critical when the extradition review is conducted within written proceedings. For example, in Germany, extradition cases are considered by the Higher Regional Court (Oberlandesgericht) in written proceedings, where the court assesses justification of extradition request and existence of risks on the basis of evidence provided. Therefore, parties are deprived of the opportunity to assess the court’s reaction and change the defense tactics. Instead, in Greece, this category of cases is considered by courts of appeal, where all levers of defense can be exercised, including involvement of experts and specialists. Prosecutors supporting extradition request may not fully understand all the procedural issues of international cooperation that should be used. Thus, in one case, the Prosecutor General's Office, in violation of territorial jurisdiction, noted in the extradition request that the person of interest would be placed in a pre-trial detention facility away from active hostilities. But this wording is contrary to the national criminal procedural legislation, which excluded such a possibility, and that drew attention of the local court. The court may refuse the extradition request if the defense shows that international wanted notice issued in consequence of systemic legal violations in Ukraine, or that circumstances in the requesting State may endanger the life and safety of the requested person. We should keep in mind that international legal assistance in extradition matters includes three components: initiation and execution of an international wanted notice; provisional arrest and extradition review; the actual extradition of the person. Presence of procedural violations, preceding international wanted notice publication, is essential, because it testifies to the fact that the State, already at the initial stage of international cooperation in criminal matters, resorted to violations of the foundations that comprise the system of the core European values in the field of justice. Establishing these circumstances will provide the basis for further defense at the next trial stage, namely substantiating facts and circumstances pointing to credible threat to life and physical safety in the requesting State. One of such circumstances, which may lead to refusal of extradition, may be the country's engagement in a military conflict and confirmed facts of missile and bomb strikes on the territory of that country. Thus, the Court of Appeal of Thessaloniki (Greece) in case No. 508/2025 concluded (decision of 27.08.2025) that the right to life and the prohibition of inhumane treatment are absolute and are not subject to restriction even in a state of emergency or military conflict. The Court expanded the interpretation and application of the conventional guarantees for life and prohibition of torture and did not limit itself to the risks of detention in poor conditions (pre-trial detention), further stated that the very presence of a person in the war zone is already an independent factor that creates a risk to life. What is conceptually new in European judicial practice is that the court concluded that even the presence of a psychological aspect of the risk can lead to refusal of extradition. The court emphasized that a protracted stay in conditions of constant threat of missile and bomb strikes creates a state of continuous fear for life and therefore can be qualified as inhumane treatment within the meaning of Art. 3 of the Convention. These circumstances became the basis for refusing to extradite a citizen of Ukraine. Instead, the Higher Regional Court of Dresden (Germany) in the case of AZ: 4 Ars 11/24 allowed the extradition of a Ukrainian to his homeland, although he insisted that in Ukraine he will be called to military service, which he did not intend to do according to his convictions. The judges justified their decision by the fact that conscientious objection to military service is not an obstacle to extradition if the state concerned was subjected to an armed attack in violation of international law. The person under extradition review referred only to the fact of unwillingness to serve in the military according to his convictions; at the same time, the circumstances of credible threat to life and physical health as a result of granting extradition request were ignored. Thus, extradition in context of an ongoing armed conflict cannot be considered as a purely formal procedure of international cooperation since it is associated with risks to conventional human rights. European practice demonstrates the lack of a unified approach to solving this issue, and the need for a clearly defined individualized strategy, which can become decisive in resolving the issue of transferring a person to the State. Автор публікації: Volodymyr Matsko Volodymyr Matsko member of UNBA Committee for criminal law and procedure
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Extradition during wartime: when the risks outweigh the request

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