The German constitution stipulates in Article 16 GG that German citizens may not be extradited to foreign countries.
This provision also stipulates that a different arrangement may be made by law for extraditions to the EU Member States and international courts. In this context, the rule of law must always be upheld, which can be assumed without separate examination in the case of EU Member States, since the rule of law is a prerequisite for membership of the European Union.
Conversely, this means that German citizens may not be extradited to so-called third countries under any circumstances. Third countries are countries that are not members of the European Union. The IRG, the Law on International Mutual Assistance in Criminal Matters, sets the requirements for extradition.
Extradition to EU Member States
Sectio 80 IRG regulates the extradition of German citizens to EU Member States.
The prerequisite for the extradition of a German citizen to an EU Member State is that the latter transfers the prosecuted person back to Germany for execution at the request of the German citizen. At the request of the person concerned, therefore, only the hearing and the pronouncement of the sentence occur in another EU country. The penalty can then be served in Germany.
Furthermore, there should be a relevant connection to the requesting Member State. This is the case, particularly if the act in question occurred on the requesting state’s territory or if the crime was committed there. This relevant connection may be omitted if, instead, there is, in any case, no appropriate connection with the domestic territory, i.e. Germany, the act is also punishable under German law, and the prosecuted person’s legitimate expectation that they will not be extradited does not prevail when the interests are weighed up. This weighing of interests must consider the fundamental rights of the person concerned, the practical requirements of extradition, and the creation of a European judicial area.
Extradition to International Courts
Since the signing of the Statute of the International Criminal Court, extraditions of German citizens to international courts are also possible.
The legislature was particularly concerned with the possibility of extradition to the International Criminal Court (ICC) in The Hague and other criminal courts. However, the open wording means that extraditions to all international courts are possible, provided that the principles of the rule of law are upheld.
Extraditions of German citizens to an international court are based on the requirements of Section 9a IRG in conjunction with the international law agreement concluded between Germany and the requesting court.
Section 9a IRG regulates, in particular, the treatment of concurrences between the request of a foreign state and that of a court. If there are no specific requirements within the meaning of Section 9a (1) IRG, the court’s request is to be given priority.
Furthermore, extraditions are prohibited as long as proceedings before an international court are still pending. If the court rejects an extradition request, extradition requests on a national basis must also be rejected.
Case Law
In 2009, the Karlsruhe Higher Regional Court rejected a request for extradition from Italy due to formal flaws (NStZ 2010, 708). Sufficient documents must accompany each request, for example, an arrest warrant, so that the requesting state is provided with evidence that the person concerned is actually to be brought before a court, Section 10 IRG.
In addition, the facts of the case must be readily apparent from the documents submitted by the requesting state. In 2014, the Stuttgart Higher Regional Court rejected an extradition request from Italy because it was not possible to specify the facts of the crime and no sufficient reports were submitted in this regard (BeckRS 2015, 15614). Such reports are mandatory under Section 83 a (1) No. 5 IRG. The requested state merely carries out a conclusive examination of the allegations of the crime. It is not obliged to select the specific subject of the extradition request from the evidence.
Deadlines such as the statute of limitations must also be observed in the case of extradition requests. In 2010, for example, the Federal Court of Justice (BeckRS 2010, 6066) rejected a request for extradition from Poland, even though Poland had acted at a national level to prevent the statute of limitations from expiring. However, the request was made when the act was already statute-barred in Germany, so neither extradition was carried out nor could the person concerned be sentenced for their actions in Germany.
A request for extradition from Austria was granted in 2019 by the Karlsruhe Higher Regional Court (BeckRS 2019, 5221). Although there were doubts about the perpetration of the person concerned, the German court was not authorised to examine the suspicion of the crime. Whether the person concerned was the perpetrator of the offence in question is to be clarified in the proceedings in the requesting state.
Practice Group: German Extradition & Interpol Law
Practice Group:
Extradition & Interpol Law
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