Extradition between Germany and India

The German constitution protects German citizens from extradition. However, Article 16 II of the German Basic Law permits the extradition of German citizens to other EU states or international courts, provided that the principles of the rule of law are upheld. The extradition agreement also stipulates that German nationals are not to be extradited to other states, Article 6 I of the agreement.

According to the ECJ, EU citizens may be extradited to third countries, provided the general prohibition of discrimination, or the free movement of persons is not violated. The German-Indian extradition agreement provides that anyone can be extradited, cf. Article 1 of the agreement.

The act in question must constitute a punishable act in both states for extradition. It is irrelevant whether the act falls under the same concept and how it is punished in each case, cf. Article 2 I GG. However, in both states, the threatened maximum penalty must be at least one year of imprisonment. If extradition is to be exclusively for execution, at least six months of imprisonment must still be served.

If the requested state regards the respective extradition as political persecution, the extradition request must be rejected. Even if race-specific, religious or personal motives are suspected behind the extradition request, the person concerned will not be extradited. Even the severe suspicion that the person concerned is threatened with disadvantageous treatment due to such personal characteristics leads to the rejection of the extradition request, cf. Article 3 of the agreement.

Article 5 of the agreement allows the rejection of the extradition request at the discretion of the requested state. However, if the underlying offence appears too minor or the extradition appears unjust or inexpedient, the extradition may be refused.

According to Article 12 of the Convention, the extradition request must be made in writing and transmitted through diplomatic channels. In addition to the national arrest warrant and evidence of the identity of the person concerned, the relevant legal provisions of the requesting state must also be transmitted to the requested state.

In urgent cases, the person concerned may already be taken into provisional extradition custody in the requested state, Article 14 of the agreement.

India and Germany have agreed that extraditions may be refused if the person concerned faces the death penalty in the requesting state for the acts committed, cf. Article 11 of the agreement. The person concerned will be extradited if a credible assurance is given that the death penalty will at least not be carried out. Since the death penalty has been abolished in Germany under Article 102 of the German Basic Law, Article 11 of the agreement is relevant for extraditions from Germany to India.

One hundred forty-four people were sentenced to death in India in 2021. Although the death penalty is no longer executed, it could be actively carried out again at any time.

Torture and inhuman and degrading treatment preclude extradition from Germany under Article 3 ECHR. According to Amnesty International, torture is systematically used in India. It is also believed that disappearances are committed there with impunity.

Furthermore, important civil rights, guaranteed as fundamental rights in Germany, are practically prohibited in India. Parents of more than two children cannot vote in local elections, nor can they exercise a profession in public service. Meetings are sometimes broken up by force. Critical statements in public, especially on social media, are banned and deleted, and those affected are arrested.