Especially in our border region of Aachen, there is a particularity that criminal defense lawyers have to deal with: The criminal liability of the actions of EU foreigners – and how to deal with this in ongoing criminal proceedings. Without profound knowledge of the so-called EU criminal law and the particularities of cross-border dealings, it is easy to make mistakes in giving advice. Since I now have an increasing client base based in the Netherlands, a few brief words on this.
The classic case is the ongoing investigation against a Dutch citizen who is suspected of importing narcotics, possibly in not small quantities. However, he is now in the Netherlands. Now the criminal proceedings against the Dutchman are in progress, possibly already the “invitation” for interrogation in Germany – and the question is: Will this be followed? And if the indictment comes – one must go there, or colloquially expressed “Deliver the Netherlands?
In order to judge this, the “Convention on the Transfer of Sentenced Persons” (after all from the year 1983!) has to be considered from a legal point of view. This convention, also ratified by the Netherlands, means first of all in principle that an extradition takes place. Or more precisely: should take place.
In fact, however, the Netherlands reserved something for itself at the time of ratification and still practices this today – if extradition takes place, then only if the other state (in this case Germany) assures that after the conviction the Dutch citizen will be handed back to the Netherlands. The Netherlands then insists that the conversion procedure under Article 11 of the Convention applies – this means that the sentence imposed in Germany is converted into a sentence that would have been imposed under Dutch law.
Since the penalties in the Netherlands for soft drugs are considerably different (sometimes a maximum of 4 years), while in Germany there is sometimes a minimum penalty (around 2 years), it is clear that considerable reductions are to be expected here. Although Article 11 does not allow a prison sentence to be converted into a fine, there is at least the option of converting a prison sentence into one with probation. The Dutch authorities consider the sentences imposed by German courts to be “too excessive,” especially in the area of BTM criminal law. A worthwhile outlook. This can also be explained if one looks at the nationwide disparity in penalties, for example, just think of the not inconsiderable difference between the jurisdiction in Bavaria and that in the Aachen judicial district. In addition, the German authorities sometimes do not even agree to this procedure, so that extradition does not take place. As a result, either no extradition takes place at all or, if it does, a substantial reduction in the sentence beckons at the end.
The result is sometimes somewhat abstruse – for example, some courts in Germany see a particular risk of flight among Dutch nationals in BTM criminal cases, because it is tempting to return to the Netherlands in order to perhaps be extradited, but then at least to benefit later in the course of the conversion (this legal opinion was expressly confirmed by the OLG Oldenburg, 1 Ws 599/09).
Furthermore, those affected who go this route must of course also have the purely practical reality of life in mind: The short trip to Germany is thus cancelled. So is the excursion on a German cruise ship or the flight in a German airplane. Furthermore, one has to see the possibility of being taken into custody in the Netherlands, at least for a short time.
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