The Higher Regional Court (OLG) in Dresden, Germany, has allowed the extradition of a Ukrainian national to Ukraine on charges of threatening behaviour and assaulting a police officer. In his defence against the extradition request, the Ukrainian national argued that he was a conscientious objector and claimed that he was at risk of being drafted into the military and sent to the front at the conclusion of his criminal case in Ukraine.
The Higher Regional Court (OLG) requested guidance from the Federal Court of Justice (BGH) as to whether such a defence – based on conscientious objection – could be raised when contesting extradition to a country which was under martial law. The case concerned a Ukrainian national accused of making threats and physically attacking a police officer in Ukraine. He was arrested in Germany in December 2023 pursuant to a request for his extradition sent by the Ukrainian authorities.
The German Federal Court of Justice held that based on the facts of the case, the defence of conscientious objection could not be raised as a ground that would bar extradition. The court held that because Ukraine was currently a country under martial law, any right to refuse to serve in the army could be restricted. A similar provision would apply under German law, if Germany’s constitutional order was under threat of being overthrown. Thus, the Ukrainian national could not rely on his conscientious objection as a means of preventing him from serving in the army. Additionally, it was open to the individual to request that he carry out an alternative form of civilian service, and this had to be considered in the context of any moves to have him enrolled in the Ukrainian military.
The German court concluded that neither the German ‘Basic Law’ (Art 12a) nor the ECHR (Article 9) provided for unrestricted protection, meaning the Ukrainian national had no recourse to the defence of conscientious objection. His defence also attempted to rely on a provision of the International Covenant on Civil and Policial Rights in relation to the compulsion to use lethal force. However, the court held that any protections provided by this legislation were no more favourable than those available under the ECHR, which again meant that the Ukrainian national was unable to plead them in his defence.
Updated: 17 February 2025
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