Extradition law USA / Germany - EU arrest warrant - Extradition. Extradition law USA / Türkiye

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Here you will find an overview of similar topics: 

• Extradition law / EU arrest warrant (German version)
• Foreigners Criminal Law / Residence Law (German version)
• Police summons/interrogation - What to do? (German version)

What is extradition?

Extradition refers to the legal process by which a person residing in one country is transferred to another country on the basis of an international extradition request. This process usually occurs when the requested nation is to hand over a suspect or convicted offender to the requesting country to be tried there or to serve a sentence that has already been handed down.

The grounds for extradition can be varied and range from serious offences such as murder, kidnapping or terrorism to less serious offences such as fraud or theft. Extradition is usually based on bilateral or multilateral agreements between the countries involved. These agreements set out the conditions under which extradition can take place and often include principles such as the prohibition of double jeopardy or respect for human rights.

Extradition proceedings

The extradition procedure begins with the receipt of a written request for extradition from the requesting state to the requested state. This is referred to as an extradition request. The requesting or requesting state must conclusively assert and demonstrate that the person concerned has committed an offence that justifies extradition. No evidence is required at this early stage of the proceedings.

Admissibility of extradition

The competent Higher Regional Court shall make a decision regarding the admissibility of extradition in accordance with the provisions of Sections 31 and 32 IRG. This decision is binding and cannot be appealed.

Prerequisites for extradition

The basis for mutual legal assistance lies in the reciprocal support between states that also grant mutual legal assistance and follows the principle of reciprocity, as laid down in Section 5 of the IRG. This principle requires that the criminal offence of which the requesting state complains must also be considered a criminal offence in the requested state, in accordance with Section 2 IRG. In addition, the conduct in question must also be regarded as a criminal offence under German law in accordance with the principle of dual criminality.

Finally, an extradition treaty between the two states is also required. An overview of the extradition treaties between the Federal Republic of Germany and other countries can be found here: Announcement of the new version of the guidelines for dealings with foreign countries in criminal matters (RiVASt)

Furthermore, the requesting state is obliged to observe the principle of speciality, as stipulated in § 11 IRG. Without the consent of the requested state, no offences other than those for which extradition has been requested may be prosecuted.

Contesting an extradition order

If a wanted person is arrested on the basis of a foreign arrest warrant, it is possible for them to consent to simplified extradition in accordance with Section 41 IRG (simplified extradition). However, if they do not do so, it is up to the public prosecutor's office to file an application for a decision with the Higher Regional Court in accordance with Section 29 IRG. A subsequent extradition can only be granted in accordance with Section 12 IRG if the competent court has declared the legality of the extradition of the accused. In this context, it is crucial that the assessment of the legality of the extradition is made by the competent court.

Decision by the Higher Regional Court

The decision as to whether someone is extradited is made by the Higher Regional Court. The decision is final (Section 13 (1), sentence 2 IRG). However, under certain circumstances, a new decision can be brought about by the Higher Regional Court if there are new circumstances or an application for a subsequent hearing has been made (Section 77 (1) IRG).

Constitutional complaint against extradition

The last option is to lodge a constitutional complaint with the Federal Constitutional Court. However, it should be noted that the Federal Constitutional Court only examines whether the decision to extradite the accused violates his or her fundamental rights, i.e. it does not examine every violation of extradition law, but only those that violate the constitution.

Inadmissibility of the extradition

However, extradition may be inadmissible under certain circumstances. Extradition is inadmissible in the following cases, among others.

• The alleged offence is not punishable under German law
• The person is at risk of torture/inhumane treatment/the death penalty
• There is no guarantee that the death penalty will not be imposed (§ 8 IRG)
• Violation of military obligations (§ 7 IRG)
• The person is a German national (exception: see below in the article)
• Criminal proceedings are politically motivated
• No guarantee of a fair trial
• Extradition violates fundamental principles of the German legal system  
• Minor offence
• The accused has already been convicted of the same offence by a final judgement

Example - Inadmissibility: Extradition to the USA.

The European Court of Justice (ECJ) has ruled in an urgent decision that Germany may not extradite a wanted Serb to the USA. The man had already been convicted of the same offence in Slovenia and had served his sentence. The ban on double jeopardy therefore prevents extradition, as no one may be convicted twice for the same offence. This rule also applies to non-EU citizens, even if an extradition treaty exists (judgment of 28 October 2022, Case C-435/22).

The USA had applied for extradition in order to prosecute the Serb for computer sabotage. The Munich Higher Regional Court argued that Germany was obliged to do so under international law on the basis of an agreement with the USA. However, this agreement only provides for the application of the "ne bis in idem" principle in the event of a conviction in the requested state, in this case Germany, and not for a conviction outside this member state. The Munich court therefore referred the case to the ECJ.

The ECJ has now ruled that the ban on double jeopardy also applies to non-EU citizens and, in this case, precludes extradition.

This prohibition is laid down in the agreement on the border-free Schengen zone and must apply irrespective of the lawfulness of non-EU citizens' residence in the EU. The fact that the extradition request is based on a bilateral extradition treaty, which limits the scope of the double jeopardy prohibition to judgements from the requested Member State, does not change this result.

Example - Inadmissibility: Extradition to Turkey.

A Turkish offender who had already been convicted in Germany resisted the extradition proceedings requested by Turkey. In his home country, he was accused of being involved in the gang-related importation of drugs (cocaine) into Turkey. Despite the person concerned's concerns that he would not be able to appear in person in the courtroom due to the considerable distance between the designated detention centre in Yalvaç and the court in Izmir, but would only be able to attend the main hearing against him via video conference, the Higher Regional Court (OLG) in Celle declared his extradition admissible and rejected an application for a postponement.

The man lodged a constitutional complaint against this decision. With success!

The Federal Constitutional Court (BVerfG) has overturned the decision of the Higher Regional Court (OLG) on the admissibility of extradition (decision of 18 December 2023 - 2 BvR 1368/23). The decision violated the complainant's right to effective legal protection in accordance with Article 19 (4) of the German Basic Law (GG). The Higher Regional Court failed to sufficiently clarify whether the man would receive a fair trial after his extradition. The European Court of Human Rights (ECtHR) has attached paramount importance to the right of an accused person to be present at the criminal trial. For this reason, the Higher Regional Court should have clarified at the outset whether the complainant has the fundamental right under Turkish law to attend a first-instance trial against him in person at his request.

The Federal Constitutional Court (BVerfG) has ruled that a Turkish offender may only be extradited to his home country if it has been sufficiently clarified to what extent the main hearing there fulfils the principle of a fair trial. On this basis, the BVerfG stopped the extradition of a man who feared that he would not be allowed to attend the trial in person in Turkey.

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