Extradition between Germany and Brazil

Like many other states, Germany has stipulated by law that its citizens may not be extradited as a matter of principle. Exceptionally, Germans may be extradited to EU member states or international courts, cf. Art. 16 II GG. Brazil is not an EU member state, so German citizens cannot be extradited there.  

According to the ECJ, there is no violation of EU law if only the own citizens, but not all EU citizens, are protected against extradition to third countries. Thus, it is possible to extradite non-German EU citizens to third countries such as Brazil. 

The IRG regulates the requirements for extradition to any state without prior agreement. According to Section 2 III IRG, any non-German who has committed a criminal offence abroad can be extradited. The act committed must be punishable in Germany, cf. Section 3 IRG.   If political or personal reasons are evident for the extradition request or if a military breach of duty is to be punished, extradition must be refused, cf. Sections 6, 7 IRG.  

According to Section 8 IRG, an obstacle to extradition exists if the person concerned is threatened with the death penalty in the requesting state. To achieve extradition, a binding assurance can be given that the death penalty will at least not be carried out. In Germany, the abolition of the death penalty is enshrined in the German Basic Law, cf. Art. 102 GG. In Brazil the death penalty is also no longer provided for in principle. Only in cases of war may the death penalty be imposed.  

Accordingly, an obstacle to extradition under Section 8 IRG between Brazil and Germany regularly does not come into effect. After transfer, the person concerned may only be punished for the offences mentioned in the request following the principle of speciality in Section 11 IRG. For possible further extradition, transfer or deportation to a third state, the requesting state must obtain the consent of the requested state. 

In addition to the requirements of the IRG, general requirements regarding the human rights situation in the requesting state are also examined in the context of an extradition request.  

According to Art. 3 ECHR, no one may be subjected to torture or other inhuman or degrading treatment. If the person concerned is threatened with such ill-treatment, they may not be extradited. There are no reports of torture during detention in Brazil. However, violence during police operations is repeatedly made public.  

Poor prison conditions can also constitute an obstacle to extradition in the sense of Art. 3 ECHR. For some time, Brazil’s detention conditions have been the subject of massive criticism. The biggest problem is the gang activities in the prisons.   

The gangs are not only involved in drug trafficking but also organise riots and abuse or killings of other inmates or guards. The extreme overcrowding in the prisons, which is highly problematic, favours gang activities. The guards are already numerically incapable of adequately managing the prison process.  

According to Art. 6 ECHR, every person has the right to a fair trial. Thus, violations of the rule of law can also stand in the way of extradition. Concerning Brazil’s rule of law, although the allegations of corruption against the (previous) government must be pointed out, Brazil is fundamentally a democratic presidential republic which, like Germany, has a separation of powers and grants a right to a fair trial.  

In this context, Brazil’s government change should also be pointed out. On 1 January 2023, a new president took over as the head of the government. High expectations are being placed on this change of government from various sides. Human Rights Watch speaks of repairing the damage done by the previous president. There is a vague hope that the poor conditions in prisons and the standards of respect for human rights will change in the near future.