Opinion of the Advocate General — ECLI:EU:C:2023:794
Date: 2023-10-19
Language of the case: German
Subject matter: Asylum policy;Area of freedom, security and justice;Border checks
Procedure: Reference for a preliminary ruling
Origin: Germany

Translation C-352/22 – 1 
Case C-352/22 
Request for a preliminary ruling 
Date lodged: 
1 June 2022 
Referring court: 
Oberlandesgericht Hamm (Germany) 
Date of the decision to refer: 
19 May 2022 
Requested person: 
A. 
Applicant: 
Generalstaatsanwaltschaft Hamm 
  
OBERLANDESGERICHT HAMM (HIGHER REGIONAL COURT, 
HAMM) 
ORDER 
[…] 
Extradition case 
(Request for a preliminary ruling from the Court of Justice of the European 
Union) 
in respect of the Turkish national, A., 
 born on … in B., Turkey, 
residing in E., 
 
 […]  
  
concerning extradition of the requested person from Germany to Turkey for 
the purposes of 
 prosecution for murder 
EN 
REQUEST FOR A PRELIMINARY RULING OF 19. 5. 2022 – CASE C-352/22 
 
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(here: request for a preliminary ruling from the Court of Justice 
of the European Union under Article 267 TFEU). 
Following the submission of the case file by the Generalstaatsanwaltschaft Hamm 
(General Prosecutor’s Office, Hamm), the 2nd Criminal Chamber of the Higher 
Regional Court, Hamm, made, 
on 19 May 2022, via  
[…] [information on the composition of the court] 
the following order: 
1. 
[…] [information on the national procedure] 
2. 
The following question is referred to the Court of Justice of the European Union 
for a preliminary ruling pursuant to Article 267 TFEU: 
Must Article 9(2) and (3) of Directive 2013/32/EU of the European Parliament 
and of the Council of 26 June 2013 (‘Procedures Directive’), in conjunction with 
Article 21(1) of Directive 2011/95/EU of the European Parliament and of the 
Council of 13 December 2011 (‘Qualification Directive’), be interpreted as 
meaning that the final recognition of a person as a refugee within the meaning of 
the Geneva Convention on Refugees in another Member State of the European 
Union is binding for the purposes of the extradition procedure in the Member 
State requested to extradite such a person on account of the obligation under EU 
law to interpret national law in conformity with the directives (third paragraph of 
Article 288 TFEU and Article 4(3) TEU), that is to say, is binding in such a way 
that extradition of the person to the third country or country of origin is thereby 
necessarily precluded until his or her recognition as a refugee has been revoked or 
has expired? 
3. 
[…] [information on the national procedure] 
Grounds: 
I. 
1 The requested person is a Turkish national and a Kurd, who had left Turkey in 
2010 and sought political asylum in Italy. Following a personal interview, the 
Regional Commission in Turin recognised the requested person as a refugee 
within the meaning of the Geneva Convention on Refugees by a final decision of 
19 May 2010, on the basis of an application to that effect by the requested person, 
who had claimed to be politically persecuted by the Turkish authorities for 
GENERALSTAATSANWALTSCHAFT HAMM 
 
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allegedly supporting the PKK. He is in possession of a refugee identity card issued 
by the Italian authorities, which is valid until 25 June 2030. The requested person 
has been permanently residing in the Federal Republic of Germany since July 
2019. 
2 The Turkish authorities have issued an Interpol alert in respect of the requested 
person with a view to his extradition for the purposes of prosecution for, inter alia, 
murder. The alert is based on the arrest warrant issued by the Bingöl 1st High 
Criminal Court on 3 June 2020. 
3 The requested person is charged with the following: 
The requested person is alleged to have initially become embroiled in a dispute 
with relatives in Bingöl on 9 September 2009 in relation to the cultivation of 
tomatoes on the field shared by them. The requested person is alleged to have 
returned home after that argument and, following a verbal argument with his 
father and brother, fired a shot from a rifle, which hit his mother, who is alleged to 
have subsequently died in hospital as a result of the injuries sustained. 
4 By order of 24 November 2020, the present Chamber ordered provisional 
detention pending extradition in respect of the requested person, who had been 
arrested on 18 November 2020, and, by order of 23 December 2020, after 
receiving the necessary extradition documents – which correspond to the Interpol 
alert – through the channels prescribed for that purpose, it ordered formal 
detention pending extradition, which was executed until 14 April 2022. 
5 By order of 2 November 2021, the Chamber declared the extradition of the 
requested person to Turkey for the purposes of prosecution to be admissible and 
ordered the extension of the detention pending extradition. In so doing, the 
Chamber stated, inter alia, that there was no bar to extradition pursuant to 
Paragraph 6(2) of the Gesetz über die Internationale Rechtshilfe in Strafsachen 
(Law on international mutual legal assistance in criminal matters; ‘the IRG’), in 
conjunction with Article 3(1) and (2) of the European Convention on Extradition. 
The requested person’s arguments as well as the documents submitted by him and 
the findings from the Italian asylum procedure that were available to the Chamber 
did not present any substantial grounds for believing that a request for extradition 
for a non-political criminal offence had been made for the purpose of prosecuting 
or punishing the requested person on account of his political opinion (first 
alternative of Article 3(2) of the European Convention on Extradition), or that, in 
the event that he were to be transferred, the requested person’s position may be 
prejudiced for such reasons (second alternative of Article 3(2) of the European 
Convention on Extradition). 
6 With regard to the Italian authorities’ recognition of the requested person as a 
refugee within the meaning of the Geneva Convention on Refugees, the Chamber 
stated that that recognition did not establish a general prohibition on extradition. 
The extradition procedure and the asylum procedure – whether domestic or, as in 
REQUEST FOR A PRELIMINARY RULING OF 19. 5. 2022 – CASE C-352/22 
 
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the present case, foreign – were separate procedures entailing a fundamental 
possibility of divergent decisions. Decisions of administrative authorities and 
courts were not binding for the purposes of the extradition procedure, as followed 
from the second sentence of Paragraph 6 of the AsylG (Law on asylum), but they 
did have indicative value for the purposes of the independent examination of the 
requirements of Paragraph 6(2) of the IRG and Article 3(2) of the European 
Convention on Extradition in the extradition procedure. 
7 The Chamber then carried out its own risk prognosis on the basis of the person of 
the requested person in the light of the situation in the country of destination – the 
Republic of Turkey – and then, taking into account the arguments of the requested 
person in the Italian asylum procedure – which were known to the Chamber by 
way of documents from the procedure in that country that had been transmitted to 
it – as well as in the present extradition procedure, explained in detail that the 
assurance given by the Turkish authorities in the note verbale of 9 February 2021, 
according to which, in the proceedings that would be conducted against the 
requested person in the event of his extradition, the standards following from 
Articles 5 and 6 of the ECHR – and thus also the right to a fair trial – would be 
guaranteed, was to be regarded as reliable. There was not a serious, real risk that 
the requested person would be exposed to political persecution within the meaning 
of Paragraph 6(2) of the IRG, in conjunction with Article 3(2) of the European 
Convention on Extradition, in the event of his extradition to Turkey. 
8 […] [information on the national procedure] 
9 The requested person lodged a constitutional complaint with the 
Bundesverfassungsgericht (Federal Constitutional Court) against the Chamber’s 
decision of 2 November 2021. By order of 30 March 2022 (ref.: 2 BvR 2069/21), 
the Federal Constitutional Court annulled the Chamber’s order of 2 November 
2021 to the extent that it declared extradition to be permissible, and referred the 
case back to the Chamber in that respect. For the remainder, the Federal 
Constitutional Court did not admit the requested person’s constitutional 
complaint. 
In support of its annulment decision, the Federal Constitutional Court, in its order 
of 30 March 2022, stated in greater detail that the Chamber infringed the 
requested person’s fundamental right under the second sentence of Article 101(1) 
of the Grundgesetz (Basic Law) – according to which no one may be removed 
from the jurisdiction of his or her lawful judge – in so far as, contrary to the third 
paragraph of Article 267 TFEU, it did not refer to the Court of Justice of the 
European Union the question of EU law raised in the present case, which is 
relevant to the decision to be given and is unresolved, as to whether the final 
recognition of the requested person as a refugee by the Italian authorities on 
19 May 2010 is binding for the purposes of the extradition procedure in the 
Federal Republic of Germany on account of the obligation under EU law to 
interpret national law in conformity with the directives (third paragraph of 
GENERALSTAATSANWALTSCHAFT HAMM 
 
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Article 288 TFEU and Article 4(3) TEU) and therefore necessarily precludes the 
extradition of the requested person to Turkey. 
10 By order of 14 April 2022, the Chamber suspended the execution of the formal 
arrest warrant issued for the purposes of extradition of 23 December 2020, subject 
to conditions, and refused the requested person’s application of 8 April 2022 for 
suspension of the formal arrest warrant issued for the purposes of extradition. The 
requested person was released from custody on 14 April 2022. 
II. 
1. 
11 Since the Chamber’s order of 2 November 2021, which, in accordance with the 
second sentence of Paragraph 13(1) of the IRG, is not subject to appeal, was 
annulled by the Federal Constitutional Court by order of 30 March 2022 to the 
extent that the extradition of the requested person was declared to be permissible, 
a new decision on the permissibility of the extradition must be taken in 
accordance with Paragraph 33 of the IRG. 
2. 
12 In that connection, the Chamber requests that the Court of Justice give an answer 
to the question referred, set out at the beginning of this order for reference. 
3. 
13 Clarification of that question is relevant to the decision to be given by the 
Chamber in the present extradition proceedings; as a court of both first and last 
instance, the Chamber is obliged, in view of the decision of the Federal 
Constitutional Court, which is binding on it under Paragraph 31(1) of the 
Bundesverfassungsgerichtsgesetz (Federal Law on the Constitutional Court; ‘the 
BVerfGG’), to refer the question which is relevant to the decision to be given to 
the Court of Justice of the European Union under the third paragraph of 
Article 267 TFEU. 
14 Since the permissibility requirements under the European Convention on 
Extradition are met and no other bar to extradition exists, and the Chamber is 
satisfied that the requested person is not threatened with political persecution in 
Turkey, with the result that the principle of non-refoulement under Article 33 of 
the Convention relating to the Status of Refugees of 28 July 1951 (Geneva 
Convention on Refugees) does not preclude extradition, the permissibility of the 
extradition of the requested person depends on whether the final recognition of the 
requested person as a refugee by the Italian authorities on 19 May 2010 is binding 
for the purposes of the extradition proceedings in the Federal Republic of 
Germany on account of the obligation under EU law to interpret national law in 
conformity with the directives (third paragraph of Article 288 TFEU and 
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Article 4(3) TEU) and therefore necessarily precludes extradition to Turkey until 
his recognition as a refugee has been revoked or has expired. 
If Italy’s asylum decision were binding for the purposes of the extradition 
proceedings being conducted in the present case, there would be a bar to 
extradition under Paragraph 6(2) of the IRG, in conjunction with Article 3(2) of 
the European Convention on Extradition, on account of the political persecution of 
the requested person which would then have to be presumed to exist, and the 
extradition of the requested person would have to be declared to be impermissible 
and the formal arrest warrant issued for the purposes of extradition by the 
Chamber on 23 December 2020 would have to be revoked. 
4. 
15 The question referred is a matter of dispute in the legal literature and has not yet 
been clarified in the national case-law – the Federal Constitutional Court, in a 
decision of 13 April 1983 (1 BvR 866/82, 1 BvR 890/82), expressly left open the 
question as to whether final recognition as a refugee is possibly binding in 
nature – or in the case-law of the Court of Justice of the European Union. 
a) 
16 In its order of 30 March 2022, the Federal Constitutional Court stated the 
following with regard to the issue in dispute: 
17 ‘… The provision forming the starting point for the issue in dispute under EU law 
was Article 7 of Directive 2005/85/EC (Procedures Directive, old version), in 
accordance with which, during an ongoing asylum procedure, a person may be 
extradited only within the European Union, namely on the basis of a European 
arrest warrant, or to international criminal courts and tribunals. Directive 
2005/85/EC ceased to apply and was replaced by Directive 2013/32/EU of the 
European Parliament and of the Council of 26 June 2013 (Procedures Directive), 
Article 9 of which replaced the former Article 7. In accordance with Article 9(3) 
of the Procedures Directive, the directive now allows for the possibility to 
extradite a person to a third country during the asylum procedure where the 
competent authorities are satisfied that an extradition decision will not result in 
direct or indirect refoulement in violation of the international and Union 
obligations of that Member State.’ 
18 (b) In the legal literature, it is concluded from this that, at least from the point at 
which refugee status has been finally recognised by a Member State of the 
European Union, extradition to a third country is no longer permissible under EU 
law, and that the second sentence of Paragraph 6 of the Law on asylum, in 
accordance with which a decision recognising a person as being entitled to asylum 
or granting international protection is not binding in extradition proceedings, must 
accordingly be interpreted in conformity with the directive. […] [References and 
further statements regarding the views expressed in academic writings] 
GENERALSTAATSANWALTSCHAFT HAMM 
 
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19 (c) The opposing view expressed in the legal literature [references] […] argues 
that it was apparent from Article 7(2) of the Procedures Directive, old version, 
that the EU legislature had regarded asylum and extradition procedures as 
independent, autonomous procedures and that a mandatory requirement whereby 
the asylum decision was to be binding in the extradition procedure was not 
intended. […] [References and further statements regarding the views expressed 
in academic writings] 
b) 
20 To date, the Court of Justice of the European Union has not taken a definitive 
position on the interpretation of Article 9(2) and (3) of the Procedures Directive, 
in conjunction with Article 21(1) of the Qualification Directive, or conclusively 
clarified the question relevant to the decision to be given, with the result that the 
Chamber requests that the Court give an answer to the question referred, set out at 
the beginning of this order for reference. 
5. 
21 On the basis of the current legal assessment, the Chamber adheres to its view – on 
which its decision of 2 November 2021 concerning the permissibility of 
extradition was based – that the final recognition of the requested person as a 
refugee by the Italian authorities is not binding for the purposes of the present 
extradition proceedings and therefore does not necessarily preclude the extradition 
of the requested person, and that, on the basis of the assessment of all the 
circumstances known to date, the requested person would not be threatened with 
political persecution in his country of origin in the event of his extradition to that 
country, with the result that there is no bar to extradition under Paragraph 6(2) of 
the IRG, in conjunction with Article 3(2) of the European Convention on 
Extradition. 
a) 
22 The Chamber takes the view that the fact that it is apparent from the provision in 
Article 7(2) of the Procedures Directive (old version) and in Article 9(2) of the 
Procedures Directive that the asylum and extradition procedures are independent, 
autonomous procedures decisively militates against Italy’s asylum decision being 
binding in nature and thereby having a blocking effect under extradition law. 
Neither the Procedures Directive nor the Qualification Directive contains express 
provisions that prescribe a binding effect. 
b) 
23 Furthermore, a relatively long period of time may have elapsed between the 
recognition of the requested person as a refugee within the meaning of the Geneva 
Convention on Refugees and the initiation of the extradition proceedings – as in 
the present case – during which time the circumstances relevant to the recognition 
of asylum status may have changed. If the final recognition of the requested 
REQUEST FOR A PRELIMINARY RULING OF 19. 5. 2022 – CASE C-352/22 
 
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person as a refugee in another EU Member State – in this case Italy – were 
binding in the requested Member State’s examination of the permissibility of 
extradition, a time-consuming revocation procedure would have to be conducted 
in the other EU Member State – in this case Italy – if new circumstances justifying 
a different assessment of the question as to the existence of political persecution 
came to light. However, as the requested person is usually being detained pending 
extradition, this could hardly be reconciled with the principle of acceleration 
(Beschleunigungsgrundsatz) applicable in cases involving detention. 
c) 
24 Lastly, the Chamber takes the view that extradition of the requested person to his 
country of origin, a third country, despite final recognition as a refugee within the 
meaning of the Geneva Convention on Refugees is permissible where – as in the 
present case – such extradition does not infringe international law and EU law (in 
particular Articles 18 and 19(2) of the Charter of Fundamental Rights). The 
Chamber takes the view that this is in line with the objective of preventing 
impunity for persons who have committed or are suspected of having committed a 
criminal offence and who move within the free internal market of the European 
Union, which has been recognised as a legitimate objective by the Court of Justice 
of the European Union on several occasions (see, for emphasis of this objective, 
with further references, judgment of the Court of Justice of the European Union of 
2 April 2020, Ruska Federacija, C-897/19 PPU, EU:C:2020:262, paragraph 60). 
If extradition for the purposes of criminal prosecution were necessarily 
impermissible – without any further examination being carried out – on account of 
the binding nature of recognition of asylum status, this would in practice result in 
impunity for the requested person in most cases. It is true that criminal 
proceedings could – theoretically – be instituted against the requested person in 
the Federal Republic of Germany under point 2 of Paragraph 7(2) of the 
Strafgesetzbuch (Criminal Code; ‘the StGB’). This would not be possible in 
practice, however, as the evidence – including witnesses – is located in Turkey 
and it would ultimately be impracticable for the German prosecution authorities to 
obtain the evidence or examine the witnesses in Turkey. 
In cases where sentences are executed, the requirements for taking over the 
execution of the sentence under the law of the State of residence are often not met. 
The provisions referred to in this order are set out in the annex thereto. 
[…]
GENERALSTAATSANWALTSCHAFT HAMM 
 
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Annex to the order of the Chamber of 19 May 2022: 
The applicable legal provisions cited in the order for reference read as follows: 
Article 9 of Directive 2013/32/EU of the European Parliament and of the Council 
of 26 June 2013 on common procedures for granting and withdrawing 
international protection (Procedures Directive): 
1. Applicants shall be allowed to remain in the Member State, for the sole 
purpose of the procedure, until the determining authority has made a 
decision in accordance with the procedures at first instance set out in 
Chapter III. That right to remain shall not constitute an entitlement to a 
residence permit. 
2. Member States may make an exception only where a person makes a 
subsequent application referred to in Article 41 or where they will 
surrender or extradite, as appropriate, a person either to another 
Member State pursuant to obligations in accordance with a European 
arrest warrant or otherwise, or to a third country or to international 
criminal courts or tribunals. 
3. A Member State may extradite an applicant to a third country pursuant 
to paragraph 2 only where the competent authorities are satisfied that 
an extradition decision will not result in direct or indirect refoulement 
in violation of the international and Union obligations of that Member 
State. 
Article 7 of Council Directive 2005/85/EC of 1 December 2005 on minimum 
standards on procedures in Member States for granting and withdrawing refugee 
status (the Procedures Directive, old version): 
1. Applicants shall be allowed to remain in the Member State, for the sole 
purpose of the procedure, until the determining authority has made a 
decision in accordance with the procedures at first instance set out in 
Chapter III. This right to remain shall not constitute an entitlement to a 
residence permit. 
2. Member States can make an exception only where, in accordance with 
Articles 32 and 34, a subsequent application will not be further 
examined or where they will surrender or extradite, as appropriate, a 
person either to another Member State pursuant to obligations in 
accordance with a European arrest warrant or otherwise, or to a third 
country, or to international criminal courts or tribunals. 
Article 21(1) of Directive 2011/95/EU of the European Parliament and of the 
Council of 13 December 2011 on standards for the qualification of third-country 
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nationals or stateless persons as beneficiaries of international protection, for a 
uniform status for refugees or for persons eligible for subsidiary protection, and 
for the content of the protection granted (Qualification Directive): 
1. Member States shall respect the principle of non-refoulement in 
accordance with their international obligations. 
Paragraph 6(2) of the IRG (Law on international mutual legal assistance in 
criminal matters): 
(1) … 
(2) Extradition is not permissible where there are substantial grounds for 
believing that the requested person, if extradited, would be persecuted 
or punished on account of his or her race, religion, nationality, 
membership of a particular social group or political opinion, or that his 
or her position may be prejudiced for any of these reasons. 
Article 3(1) and (2) of the European Convention on Extradition: 
1 Extradition shall not be granted if the offence in respect of which it is 
requested is regarded by the requested Party as a political offence or as 
an offence connected with a political offence. 
2 The same rule shall apply if the requested Party has substantial 
grounds for believing that a request for extradition for an ordinary 
criminal offence has been made for the purpose of prosecuting or 
punishing a person on account of his race, religion, nationality or 
political opinion, or that that person’s position may be prejudiced for 
any of these reasons. 
Paragraph 6 of the AsylG (Law on asylum): 
The decision on the application for asylum shall be binding in all matters in 
which recognition of entitlement to asylum or the granting of international 
protection within the meaning of point 2 of Paragraph 1(1) is legally 
relevant.  
This does not apply to extradition proceedings and proceedings under 
Paragraph 58a of the Aufenthaltsgesetz (Law on residence). 
Paragraph 7 of the Strafgesetzbuch (Criminal Code; ‘the StGB’) 
(1) German criminal law shall apply to offences committed abroad against 
a German, if the act is also a criminal offence at the place of its 
commission or if that place is not subject to any criminal jurisdiction. 
GENERALSTAATSANWALTSCHAFT HAMM 
 
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(2) German criminal law shall apply to other offences committed abroad if 
the act is also a criminal offence at the place of its commission or if 
that place is not subject to any criminal jurisdiction and if the offender 
1. was a German national at the time of the act or became a German 
national after the act, or 
2. was a foreign national at the time of the offence, was found to be 
staying in Germany and, although extradition legislation would 
permit extradition for such an offence, is not extradited because a 
request for extradition is not made within a reasonable period, 
because a request is rejected or because extradition is not 
feasible.