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So there are currently discussions between Russia and the US about some possible prisoner exchange to release US citizens Griner and Whelan from Russia. Apartently Russia made a request (through inofficial channels) that they would like to get Vadim Krasikov in return (source). Krasikov is a Russian citizen legally convicted and sentenced in Germany for a murder he committed in Germany.

Question: If the German government were interested in freeing Krasikov and sending him to Russia, would they be able to do so?

As there is independence of the judiciary from the government, the government can't just randomly revoke prison sentences becauses it wants to. There may be some rules for granting a pardon but I don't know whether they could be applied here? As Krasikov is not a German citizen, there may be other possibilities as well? So could the German government decide to free Krasikov or is that not within their legal means?

Note that discussions on whether the German government should or should not do that are speculation that I'm not interested in and would be opinion based.

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    Maybe German constitution article 60 paragraph 2 might apply. There is some kind of pardon and the German president has it. Jul 31, 2022 at 14:02
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    I think your full question has the order wrong. Not that I think that they should take these steps, but the obvious legal loophole would be sending Krasikov to Russia without freeing him, i.e. with an official agreement that he will finish his sentence there. This way there would be no need for a pardon, but if the Russians then let the guy run free contrary to that agreement, Germany could keep up all legal appearance by sending a strongly worded letter.
    – mlk
    Aug 1, 2022 at 9:18
  • @mlk I don't know whether that would be a) legal in Germany and b) within the federal governments power to decide. It could very well be and if so the procedure to arrange that would be another answer to my question.
    – quarague
    Aug 1, 2022 at 9:21

3 Answers 3

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As mentioned in the comments, there is the "loophole", that Germany would not have to pardon Krasikov at all.

Both Germany and Russia have ratified the Convention on the Transfer of Sentenced Persons. Thus, if both governments agree (and Krasikov himself does consent), there would be no legal objection to send him to Russia to finish his sentence there. If Russia then decides to pardon him, or simply let him run free under a new identity while officially keeping him in prison, the only thing Germany could do is send a strongly worded letter.

I guess that the political fallout of such an act would be quite immense though.

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According to law, the perpetrator will be expeled from Germany after serving his sentence, but not before it ends.

While this describes common practice, it seems it is not outside the competence of the minister of justice to order that an expulsion should take precedence over serving the sentence in full.

A pardon is possible if the Federal President decides so personally and for the individual case.

The expulsion of foreign citizens because of crimes commited is common practice in Germany. § 54 Aufenthaltsgesetz (residence law) defines a "grave particular interest" for expeling a person in cases of long prison sentences and crimes against life, among others:

(1) Das Ausweisungsinteresse im Sinne von § 53 Absatz 1 wiegt besonders schwer, wenn der Ausländer

  1. wegen einer oder mehrerer vorsätzlicher Straftaten rechtskräftig zu einer Freiheits- oder Jugendstrafe von mindestens zwei Jahren verurteilt worden ist oder bei der letzten rechtskräftigen Verurteilung Sicherungsverwahrung angeordnet worden ist,
    1a. rechtskräftig zu einer Freiheits- oder Jugendstrafe von mindestens einem Jahr verurteilt worden ist wegen einer oder mehrerer vorsätzlicher Straftaten
    a) gegen das Leben,
    ...

After such an expulsion, the person can be banned from re-entry into Germany for up to 20 years.

These expulsions can be ordered even instead of serving a prison sentence, or before it ends. Serving the sentence can restart if the perpetrator re-enters the country. § 456a Strafprozessordnung (code of criminal procedure) ascertains:

(1) Die Vollstreckungsbehörde kann von der Vollstreckung einer Freiheitsstrafe, einer Ersatzfreiheitsstrafe oder einer Maßregel der Besserung und Sicherung absehen, wenn der Verurteilte...aus dem Geltungsbereich dieses Bundesgesetzes abgeschoben, zurückgeschoben oder zurückgewiesen wird.
(2) Kehrt der Verurteilte zurück, so kann die Vollstreckung nachgeholt werden...

In practice, there are further rules followed. While they differ from Land to Land, their core stipulations seem to be the same everywhere. As an example, the decree by the Brandenburg minister of justice first remarks that "there should not be the impression that the state does not take measures after crimes were committed by foreign citizens":

Bei der Anwendung des § 456 a StPO ist aber darauf zu achten, daß das allgemeine Ziel des Strafrechts nicht in unvertretbarer Weise beeinträchtigt wird und daß der durch § 456 a StPO ermöglichte Verzicht auf den weiteren Strafvollstreckungsanspruch des Staates nicht zu dem Eindruck führt, daß der Staat aus Straftaten ausländischer Staatsbürger und den aus ihnen resultierenden Gerichtsurteilen keine Konsequenzen mehr zieht.

As a general rule, at least half of a timed prison sentence should be served. In cases of very serious crimes, the period should be longer:

Eine über den Halbstrafenzeitpunkt hinausgehende Vollstreckung kommt dann in Betracht, wenn aus besonderen in der Tat oder in der Person des Verurteilten liegenden Gründen oder zur Verteidigung der Rechtsordnung eine nachhaltige Vollstreckung geboten ist. Dies gilt insbesondere

  • bei Verurteilungen wegen besonders schwerwiegender Delikte,
  • ...

But for life sentences as in the case of Vadim Krasikov, an exemption from serving the full time can only be ordered after fifteen years. Even more, because the court stated the "particular graveness of the crime" in his case, the exemption is excluded:

Bei lebenslanger Freiheitsstrafe kommt ein Absehen von der weiteren Vollstreckung nicht vor Verbüßung von 15 Jahren in Betracht.

Eine Maßnahme gemäß § 456 a StPO kommt nicht in Betracht, wenn das Gericht die besondere Schwere der Schuld des Verurteilten festgestellt hat.

Edit: These rules are set by a decree in which the minister of justice instructs the prosecutors (which act as law enforcement authority) how to intepret § 456 a StPO. Prosecutors are bound to follow these instructions, and the minister, in principle, is free to instruct in a different way. I am not completely sure if the minister could simply order to deviate from the decree in a single case, of if he had to issue a change, but the result is the same: it seems to be within his competence to order that an expulsion takes precedence over serving a sentence.

A pardon would also be possible. Normally, in cases of murder the right to pardon is granted to the head of the Land the court that heard the case is located in, in this case the governing mayor of Berlin. But as the court stated the involvement of a foreign secret agency, the prosecution was lead by the federal Public Prosecutor General (§ 120 Gerichtsverfahrensgesetz). This gives the sole competence to the federal president. While he may delegate that right to others in general, for cases of "extraordinary relevance", he has reserved the right explicitely for himself.

According to an analysis by the scientific service of the federal parliament, pardons always need to be a decision in a singular case, and are at the free discretion of the president. Federal ministers "prepare pardon cases that are in their area of responsibility". Pardons also cannot be reviewed by a court.

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    This is right as far as I can tell, but it should start by a brief summary: It is common to evict foreign criminals after part of the sentence is served, but part of the sentence doesn't apply to this kind of life sentence yet. A presidential pardon is possible, but would that happen without the agreement of the government?
    – o.m.
    Jul 31, 2022 at 17:33
  • I haven't found much about the role of government apart from its "preparatory" role. Wikipedia says the pardon needs to be countersigned by the minister of justice, but gives no source for the claim.
    – ccprog
    Jul 31, 2022 at 18:00
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    I'm asking about the formal steps. Imagine the Chancellor goes to the President, saying "our allies would like to release this prisoners as a bargaining chip, and we agree." Surely that affects the decisionmaking which leads to the signature.
    – o.m.
    Jul 31, 2022 at 18:36
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    FYI, Americans would use the word "deported" here - "will be deported from Germany," not "will be evicted from Germany." You can't be evicted from a country; you can only be evicted from a property (a house, apartment, etc). Aug 1, 2022 at 16:24
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    @JamesMoore Thank you for that clarification. - German law distinguishes between Ausweisung (the removal of the right of residence) and Abschiebung (actually forcing the person to leave the country). I think "deportation" is more aligned with the second one. Would "expulsion" be an appropriate term for the first meaning?
    – ccprog
    Aug 1, 2022 at 17:01
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The tagesschau news site reports today that § 456a StPO allows the Generalbundesanwalt (attorney general) to end the imprisonment if the convict receives a deportation order first, without consulting any court, even in the case of life sentences. And that in this regard, the attorney general would be under the orders of the federal government.

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    That fits with a hunch I had. While all Länder have these decrees in place for interpreting § 456a StPO, if the Generalbundesanwalt is in charge, is there an equivalent decree on the federal level? I haven't been able to find one, and if it is really missing, there are really no guidelines how to handle such an expulsion but the political will.
    – ccprog
    Aug 1, 2022 at 19:10

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