Extradition proceedings form part of the international mutual legal assistance in criminal matters. Extradition between Germany and other states is regulated, particularly by the Law on International Mutual Legal Assistance in Criminal Matters (IRG).
The German extradition procedure is divided into two parts. It consists of the judicial admissibility procedure on the one hand and the official authorisation procedure on the other. The Higher Regional Courts (Oberlandesgerichte) are responsible for the admissibility decision (§ 13 (1) sentence 1 IRG). The court decision regarding the admissibility of the extradition forms the first part of the extradition proceedings (§ 32 IRG). Among other things, the Higher Regional Court examines whether there are legal obstacles to extradition.
However, extradition proceedings are not criminal proceedings in their own right. Instead, it is a formal procedure to support a foreign criminal prosecution. For this reason, too, it is not even examined whether there is sufficient suspicion of a crime (cf. § 10 (1) (2) IRG), but relies on the existence and correctness of the information.
Following a positive admissibility decision by the Higher Regional Court, the official authorisation is usually granted quickly. The approval decision is an intergovernmental act and a discretionary decision by the competent judicial authority. If the Higher Regional Court has made a positive admissibility decision, a corresponding authorisation will usually follow promptly. However, the judicial authority can also refuse this, for example, for (foreign) political reasons, if the requesting state itself was not prepared to comply with requests from mutual legal assistance in the past. If the grant is refused, the proceedings end. If, on the other hand, the extradition is granted, a binding treaty under international law is created between the two states.
Final Remedy: The Constitutional Complaint in Germany
The constitutional complaint is regulated in Article 93 (1) no. 4a of the German Constitution, §§ 13 no. 8a, 90 ff. BVerfGG. It may be lodged by any natural or legal person who claims that one of their fundamental rights (Articles 1 to 19 German Constitution) or a so-called proper equivalent to a fundamental right (§§ 20 (4), 33, 38, 101, 103, 104 German Constitution) has been violated by a German public authority. The latter includes, for example, the right to be heard (Article 103 (1) GG). Thus, within the framework of extradition proceedings, the admissibility decision of the court can, in principle, be challenged. If the Federal Constitutional Court finds that there has been a violation of (fundamental) law, the extradition decision in question is set aside and referred back to the competent Higher Regional Court (OLG) (§ 95(2) BVerfGG).
The constitutional complaint must be lodged at the latest within one month after receiving the challenged decision and must contain a written statement of the grounds (cf. § 93.1 sentence 1 BVerfGG). The time limit begins with the publication of the admissibility decision (§ 32 IRG). The statement of grounds must set out the facts from which the alleged violation of a fundamental right or a suitable equivalent to a fundamental right arises. The right in question and the admissibility decision of the Higher Regional Court must be named (cf. § 92 BVerfGG).
It should be noted that the Federal Constitutional Court does not review every simple violation of rights in extradition proceedings. There is only an examination of the violation of specific constitutional law (BVerfGE 1, 418, 420). This means that it only examines whether the decision constitutes a clear and weighty violation of fundamental rights or violates other specific constitutional laws.
Exhaustion of Legal Remedies and Application for the Right to be Heard
In principle, if the legal process has been exhausted, a constitutional complaint may only be lodged according to § 90 (2) sentence 1 BVerfGG. However, § 13 (1) sentence 2 IRG stipulates that the admissibility decision of the Higher Regional Court is final. This means that no further action can be taken against this decision through ordinary legal channels. Thus, it can only be challenged with the extraordinary legal remedy of a constitutional complaint.
However, if necessary, an application for restitution in integrum due to denial of the right to be heard under § 77 IRG in conjunction with § 33a Code of Criminal Procedure must be filed unsuccessfully with the Higher Regional Court (OLG) before the constitutional complaint is lodged. This is necessary if the person concerned can use such an application to obtain the subsequent granting of a hearing on the points he considers to have been ignored (BVerfG, decision of 8.4.2004 – 2 BvR 578/04). However, the hearing appeal may be dispensable in individual cases if it would have been futile anyway (BVerfG, decision of 9.11.2016 – 2 BvR 545/16).
The admissibility decision can be challenged using a constitutional complaint and, as a result, overturned if it violates the fundamental right under Article 16a (1) German Constitution (Right of Asylum). According to this article, politically persecuted persons enjoy the right to asylum. This fundamental right is granted irrespective of whether the person concerned is accused of a criminal offence in the extradition request. It thus protects against extradition.
A prerequisite for the assumption of political persecution is that it occurs for reasons that lie solely in the political conviction of the person concerned, their religious beliefs or in characteristics that are unavailable to them and that characterise their otherness (“characteristics relevant to asylum”) (BVerfG, decision of 9.4.2015 – 2 BvR 221/15, marginal no. 11). The latter include, for example, sexuality or membership of a social group (e.g., homosexuals or transgender people) or nationality.
If there are serious reasons to assume political persecution, the Higher Regional Court (OLG) must declare the extradition inadmissible. If there are corresponding indications, the Higher Regional Court (OLG) must initiate the investigations possible to clarify an alleged danger of political persecution before it decides on the admissibility of the extradition. This serves to ensure that a potential asylum claim is not prevented (BVerfG, decision of 9.4.2015 – 2 BvR 221/15, marginal no. 13 f.).
The Principle of Proportionality: Unbearably Harsh Punishment
Under § 73 sentence 1 IRG, any mutual legal assistance is inadmissible if it contradicts essential principles of the German legal system. In particular, the principle of proportionality must be observed, which is one of the elementary and indispensable constitutional principles.
Extradition is therefore inadmissible if, in the event of a conviction in the requesting state, there is a threat of an unbearably harsh punishment which appears unreasonable from every possible point of view and therefore does not comply with the principle of proportionality (cf. BVerfGE 75, 1, 16; 113, 154, 162). Moreover, the punishment threatened or imposed must not be cruel, inhuman or degrading. Based on Article 1.1 German Constitution and Article 2.1 German Constitution, this is also one of the essential principles of the German constitutional order (cf. BVerfGE 75, 1, 16 f.; 108, 129, 136 f.).
However, the assessment is not only based on German constitutional law. Instead, in the area of mutual legal assistance, the structures and contents of foreign legal systems are to be respected and taken into account, even if they do not correspond in detail to the prevailing views in Germany (BVerfG, decision of 28 July 2016 – 2 BvR 1468/16, marginal no. 44). It is, therefore, quite conceivable that punishment does not appear appropriate when measured against the German Constitution, but extradition is nevertheless permissible.
According to the established case-law of the German Constitutional Court (BVerfG), extradition for the enforcement of a judgement in absentia must comply with the essential constitutional principles or the indispensable existence of German public order (BVerfG, Beschl. 15.12.2015 – 2 BvR 2735/14, para. 60). Accordingly, the person concerned must be informed when criminal proceedings against them are conducted and concluded. In addition, once they have been announced, they must be allowed to obtain a legal hearing and to be able to defend themselves effectively.
After extradition, the person concerned must have a legal remedy by which the decision rendered in absentia can be challenged in such a way that the constitutionally indispensable rights of defence, encompassed by the guarantee of human dignity (§ 1(1) German Constitution), are guaranteed (§ 23(1) sentence 2, 92 BVerfGG).
In an extradition case based on an Italian decision rendered in absentia, it was sufficient for the Higher Regional Court (OLG) Düsseldorf to assume admissibility that a renewed taking of evidence in Italy was “in any case not excluded”. However, if the prosecuted person has sufficiently demonstrated that they would indeed not be granted this possibility, the OLG is obliged to make enquiries about the legal situation and practice in the requesting state. The Higher Regional Court of Düsseldorf did not comply with this obligation, so its decision violated the principle of guilt enshrined in § 1 (1) German Constitution (BVerfG, Beschl. 15.12.2015 – 2 BvR 2735/14, para. 109 f.).
Assurances of the Requesting State
The principle of official clarification applies in extradition proceedings (cf. BVerfG, Beschlussl. V. 28.07.2016 – 2 BvR 1468/16, para. 49). This means that the Higher Regional Court (OLG) must ensure that the extradition does not violate elementary, indispensable constitutional principles. However, in principle, the requesting state must be trusted concerning compliance with the principles of the rule of law and the protection of human rights. However, this principle of trust no longer applies if facts to the contrary shake it (see BVerfGE 109, 13, 35 et seq.; 109, 38, 61; BVerfG Beschl. V. 15.12.2015 – 2 BvR 2735/14, marginal no. 68). As a rule, there must be well-founded indications in the specific case that the minimum standards under international law are not being complied with, for example, that there is a risk of treatment contrary to human rights (cf. BVerfG, Order of 15.12.2015 – 2 BvR 2735/14, marginal no. 71).
If, for example, there are justified concerns regarding the conditions of detention and the medical treatment of the prosecuted person in the requesting state, it may be sufficient to assume the admissibility of the extradition if the state in question provides assurances in this regard. This is because, according to the established case law of the Federal Constitutional Court, warranties given by the requesting state that are binding under international law are, in principle, suitable in extradition proceedings to dispel doubts about the admissibility of the extradition. An exception exists if it is expected in the individual case that the assurance will not be complied with (cf. BVerfGE 109, 38, 62).