Conscientious objection to military service does not necessarily constitute an obstacle to criminal extradition proceedings, Germany’s top court ruled on Wednesday.
According to the Federal Court of Justice (BGH), this applies when the country to which a person is to be extradited is under attack, meaning the right to conscientious objection is not guaranteed.
The specific case concerned the extradition of a Ukrainian.
The authorities in his home country accuse him of insulting, threatening and physically assaulting a police officer and are demanding his extradition under the European Convention on Extradition.
According to the German court, the man faces up to five years in prison in Ukraine. He fears that he would be drafted into military service and sent to the front upon his return.
Conscientious objection is almost impossible in Ukraine due to the ongoing Russian invasion, the man argued. However, he said that he could not bring himself to kill someone.
The case was initially heard by a higher regional court in the eastern German city of Dresden, which then referred the case to the top court in Karlsruhe to clarify whether extraditing the man would violate a fundamental principle anchored in Germany’s constitution, namely that “No one may be forced against their beliefs to perform military service with a weapon.”
However, the top court ruled that “the German constitutional order could allow or even require the protection of the right to conscientious objection to military service to be subordinated to other high-ranking constitutional values in an extraordinary situation.”
The court found that no absolute right to conscientious objection can be derived from the European Convention on Human Rights and the International Covenant on Civil and Political Rights when a country is under attack.
Therefore the war-related suspension of this right in the requesting state – in this case Ukraine – cannot be regarded as an insurmountable obstacle to extradition.
