—Petra Bárd, Professor of Sustainable Rule of Law at the Research Centre for State and Law (SteR) at Radboud University, Nijmegen; Associate Professor at Eötvös Loránd University (ELTE) Faculty of Law, Budapest; and Research Affiliate at the Central European University (CEU) Democracy Institute

On 5 June 2024 the German Federal Court of Justice in Karlsruhe issued a European Arrest Warrant (EAW) for Volodymyr Zhuravlov (case no. 1 BGs 424/24), a Ukrainian diving specialist suspected of involvement in the 26 September 2022 Nord Stream explosions. The blasts ruptured Nord Stream 1, which had delivered Russian gas to Germany until Moscow halted supplies in August 2022, and damaged Nord Stream 2, which had never entered into operation. German authorities believe that Zhuravlov and two other Ukrainians used the yacht Andromeda to place the explosives near the Danish island of Bornholm. Zhuravlov firmly denied any role, insisting: “I did not blow up Nord Stream.”

He was arrested near Warsaw on 30 September 2025. On 17 October that same year, Judge Dariusz Łubowski of the regional court in Warsaw refused to surrender him, holding that actions carried out in a just defensive war cannot constitute a crime and that Germany lacks jurisdiction over the events, rendering the EAW unenforceable.

The Warsaw court judgment denying surrender

The EAW accused Zhuravlov of involvement in the Nord Stream explosions, specifically of “anti-constitutional sabotage,” destruction of infrastructure, and causing an explosion under Sections 88(1) Point 3, 305(1) and 308(1) German Criminal Code (Strafgesetzbuch, StGB). Yet an EAW procedure is not a forum to determine guilt. It addresses something far narrower: whether the acts listed in the relevant EAW justify surrender and whether any ground for refusal applies.

Thus, the real question was not whether Zhuravlov was a saboteur, a hero, or an innocent diver, but whether Polish law, particularly the closed catalogue of refusal grounds in Articles 607P and 607R of the Polish Criminal Procedural Code, barred execution of a formally valid arrest warrant. Two legal issues arose: (a) whether the German courts are sufficiently independent to try the suspect (the court declined to examine this), and (b) whether the alleged conduct can constitute an extraditable offence under an EAW, which itself hinged on two sub-questions: (i) the nature of the act, and (ii) the inapplicability of German law and lack of jurisdiction.

a. Dismissed discussion on the independence of German courts

Zhuravlov’s defence claimed an “absolute obstacle” to surrender under Article 607P(1) Point 5 of the Polish Criminal Procedural Code, alleging the politicisation of the German judiciary and even corruption of German political elites by Russia. They pointed to political influence over judicial appointments, the lack of strong judicial immunity, and cited the judgment of the Landgericht Erfurt of 23 August 2023, where a judge received a suspended prison sentence for exceeding his powers. The defence also mentioned the corruption of German political elites by Russia, with special reference to former chancellor Gerhard Schröder, culminating in the vision that Germany could one day hand the suspect straight over to Moscow, thus violating his rights and freedoms, including his right to life.

Although unrelated to the case at hand, a hearing held that very same day, 17 October 2025, before a parliamentary inquiry committee in Schwerin highlighted to any outside observer the very German-Polish tensions on which the defence sought to capitalise. The committee is examining the controversial “Climate and Environmental Protection Foundation”, which – though formally established to support climate objectives – is widely viewed as an instrument to advance Schröder’s pro-Nord Stream agenda. In his testimony, Schröder openly dismissed Poland’s long-standing objections, stating that he had never been interested in Warsaw’s viewpoint and deeming their concerns irrelevant for German decision-making. He expressed no regrets and continued to defend Nord Stream 2 as a form of “peace policy” serving German interests in the tradition of Ostpolitik. Schröder’s revisionist narrative, particularly in light of Russia’s full-scale invasion of Ukraine in 2022, was sharply criticised not just in Poland, but also in Germany as self-serving. As Die Zeit put it: “Insight and self-criticism – not that one would have seriously expected them – were lacking.” According to the Frankfurter Allgemeine Zeitung: “With this attitude, Schröder has done much to keep the historically rooted Polish mistrust of Germany alive, even in pro-European circles. The fact that he labels the deliberate disregard of Polish interests as ‘peace policy’ is revealing.”

But the Polish court was unmoved by the defense’s arguments and held that such geopolitical allegations fall outside the scope of surrender proceedings. Article 607P(1) Point 5 therefore fell away.

Strikingly, the Warsaw court limited itself to Polish black-letter law and ignored the Aranyosi/LM test developed by the Court of Justice of the European Union (CJEU), which outlines the circumstances under which surrender must be refused on human rights grounds – such as poor prison conditions – or on rule of law grounds, including concerns about judicial independence. While the Framework Decision on the EAW does not list human rights or rule of law concerns as grounds for refusal, under the LM case law, the CJEU requires executing national courts to conduct a two-step examination before refusing to execute a EAW on judicial independence grounds. The executing court must undertake an objective, evidence-based assessment of whether systemic or generalized deficiencies exist in the issuing state that threaten judicial independence and, consequently, the essence of the right to a fair trial under Article 47 of the Charter. This assessment must rely on specific, reliable, and up-to-date information. If systemic deficiencies are established, the next step requires an assessment of the individualised limb of the test. At this stage, the executing judicial authority must determine, specifically and precisely, whether there are substantial grounds for believing that the individual subject to the EAW faces a real risk of a human rights violation. This component of the test poses serious, near-Herculean hurdles for the individual concerned, particularly in demonstrating how their rights may be specifically violated as a result of judicial capture or broader executive influence over the judiciary. But there is more. When determining the individual concern, executing and issuing courts are supposed to engage in a dialogue. While such engagement may be appropriate when assessing prison conditions, it gives rise to an inherent conflict of interest when the issuing court is effectively asked to assess its own independence from the executive—and, by implication, to acknowledge whether it can guarantee the suspect a fair trial upon surrender. While the LM test has proven largely ineffective in practice and has rarely stopped surrenders even in the face of systemic judicial capture, it should nonetheless have been addressed. The Warsaw court however skipped the LM framework entirely, refusing to engage Germany in the mandatory judicial dialogue about German courts’ independence.

b. The alleged conduct cannot constitute an offence under an EAW

(i) The Real Legal Battlefield: the Nature of the Act

The Polish court then turned to Article 607R(1) Point 1 Polish Criminal Procedural Code, which became decisive. It asks a simple question: is the conduct described in the EAW an “offence” under Polish law at all? To answer it, the court stepped beyond narrow criminal classification and reached into international law, the law of armed conflict, and the doctrine of the just war. The reasoning was at times, scholastic. Judge Łubowski recalled that since 2014 Russia has waged a genocidal war of aggression against Ukraine, and that a bellum iustum – from Aristotle and Cicero through Augustine and Aquinas to modern humanitarian law – permits defensive military action aimed at peace, not conquest. On this basis, Ukrainian operatives cannot be treated as terrorists or saboteurs for attacking the infrastructure of an aggressor state: sabotage is a crime in peacetime, but a legitimate act of war in a just defensive conflict. Relying on UN General Assembly Resolution 56/83, Germany v. Italy (ICJ, 2012) and international practice, the court held that such acts are attributable solely to the state, and individuals acting on its behalf are protected by functional immunity. Even if Ukraine denies involvement, the decisive point was this: if Ukraine ordered the operation, then only Ukraine, and not its agents, could bear responsibility.

(ii) Jurisdictional Collapse of the German Case

There was a second blow to the EAW: according to the Warsaw court the German courts lack jurisdiction. This reasoning has two subparts.

First, the alleged act did not occur on German territory or in German territorial waters, but near Bornholm and on the high seas. Citing the 1994 San Remo Manual (Part III, Section I, Para. 40), the court held that the Nord Stream pipelines qualified as military objectives, and then slid fully into the hero-versus-villain narrative it had promised to avoid. Judge Łubowski argued that destroying the pipelines deprived Russia of billions in revenue and therefore served a legitimate military purpose, since every cubic metre of gas purchased by Germany helped bankroll Russia’s aggression. On this logic, Germany was not a neutral trading state but one acting “hostile” to Ukraine. Ownership reinforced this view: Nord Stream 1 and 2 are Russian-controlled (via Gazprom), even if Germany was a minority shareholder in the former, so Germany was, in effect, trying to prosecute an alleged attack on Russian property. To expect Ukraine to analyse shareholder structures before targeting enemy infrastructure, the judge hinted, would turn wartime strategy into a corporate due-diligence exercise.

Second, the Warsaw court held that German criminal law does not apply extraterritorially in this scenario. The acts occurred in international waters, not on German soil or vessels, and Sections 3-6 StGB did not confer jurisdiction. Only Section 308(1) on causing explosion even arguably reaches beyond German territory, but even this link was, at best, remote. The sole German nexus was that the yacht Andromeda was once near Rügen – an argument the court mocked as akin to claiming that a Dresden bank robbery took place in Leipzig because the getaway car was rented there. Chartering a yacht 18 days before the blast, it concluded, cannot create a forum delicti commissi or justify the application of German law. In the court’s view, such matters should be dealt with by an international or ad hoc tribunal, not by national prosecutors stretching jurisdiction across the Baltic.

Conclusion

The Polish court declined to treat the case as one of judicial independence or rule of law, refusing to apply the LM framework. Even though the defence highlighted both systemic risks to judicial independence and the specific dangers the suspect would face in a highly politicised case, the judge nonetheless declined to apply the LM test. It is hard to tell what went on in the mind of the judge: either he denied the existence of any judicial independence problem in Germany, or he considered the test practically useless. The latter view would hardly be surprising. Scholars have long warned that the LM framework is essentially inoperable, while judges themselves have described it as an “uncomfortable, often laborious and largely futile attempt” to engage in genuine dialogue with the issuing authority. The STREAM EAW research project’s outcomes confirm that the test has failed to prevent surrender even in the face of blatant value violations; only a negligible number of cases have ever been stopped. In practice, domestic courts have frequently ignored or only superficially applied the test to avoid the uncomfortable prospect of contributing to fair-trial risks while executing a EAW.

A German case illustrates the dysfunction. In a case which can be seen as a reverse of the present one concerning the surrender of two suspects from Germany to Poland, the District Court of Appeals of Karlsruhe refused to conduct the individualised LM assessment. (case no. Ausl 301 AR 15/19) Although it formally requested information from Poland, it did not wait for the reply. Instead, it suspended the surrender altogether, holding that the suspects faced a real risk of a fair-trial violation, a risk it clearly did not believe any assurance from the Polish authorities could plausibly cure.

In the present case, instead of even touching the LM test, the Warsaw court relied on two other grounds: (i) acts carried out in a just defensive war on behalf of Ukraine cannot constitute a crime, and (ii) Germany lacked jurisdiction and therefore had no legal basis to issue a European Arrest Warrant. On this basis, the EAW was refused under Article 607R of the Polish Criminal Procedural Code and the court ordered Zhuravlov’s release. The decision is not final and may be appealed, but it has already been indicated that no appeal will be lodged. Also the German Foreign Minister stated that his government would respect the ruling.

The case is a rare collision between the EAW and the law of war, and it illustrates that even a formally flawless EAW cannot extend jurisdiction to the high seas or recast wartime diversion as peacetime sabotage.

Suggested citation: Petra Bárd, When Just War Meets the European Arrest Warrant: Warsaw Court Refuses Germany’s EAW in the Nord Stream Case, Int’l J. Const. L. Blog, Nov. 14, 2025, at: http://www.iconnectblog.com/when-just-war-meets-the-european-arrest-warrant-warsaw-court-refuses-germanys-eaw-in-the-nord-stream-case/