Judgment of the ECJ on provisional arrest and the prohibition of double jeopardy in the presence of a red notice (ECJ, judgment of 12 May 2021, Case C-505/19):
In its judgment of 12.05.2021, the ECJ (European Court of Justice) held that the provisional arrest of a person on the basis of an Interpol red notice is permissible unless a judicial decision establishes that the person concerned has already been finally convicted in a Contracting State or a Member State for the same offence(s) to which the red notice relates.
Such a court decision presupposes a corresponding legal remedy, which (also) does not exist in Germany.
The background to the decision is a referral by the VG (Administrative Court) Wiesbaden to the ECJ. The Wiesbaden Administrative Court was called upon by an 83-year-old German who has been wanted by the US law enforcement authorities on bribery charges since 2012 with a Red Notice. However, a preliminary investigation was also underway against him in Germany because of these allegations, which was discontinued in accordance with section 153a, paragraph 1 of the Code of Criminal Procedure (StPO) against payment of a fine.
Nevertheless, the person concerned had to reckon with his arrest in one of the other 189 Interpol states, including EU member states. This is because despite a notice from the BKA (Federal Criminal Police Office) that it could be assumed that the prohibition of double jeopardy existed, he was still on the wanted list. For this reason, he turned to the Wiesbaden Administrative Court and demanded that the BKA, as the National Central Bureau for Interpol, take measures to have the Red Notice deleted. The danger of being arrested restricted his right to freedom of movement.
The Wiesbaden Administrative Court then referred questions to the ECJ on the application of the prohibition of double jeopardy, in particular on provisional arrest in the case of a red notice.
In its ruling, the ECJ not only stated that the fact that the prohibition of double jeopardy applies must be judicially established (until then, provisional arrest is permissible), but also that the contracting and member states must ensure that appropriate legal remedies exist for such a judicial determination.
However, exactly this does not exist in Germany so far. We will follow the development of this with interest.