Extradition between Germany and Chile

According to Article 16 II of the German Basic Law (GG), extradition of German citizens is only possible to other EU countries, and certain international courts, insofar as the principles of the rule of law are upheld. However, the permission to extradite to EU member states does not extend to other countries (“third countries”), including Chile. In cases where a Chilean extradition request is made against German citizens, Germany takes over the prosecution itself.

Citizens of other EU countries also enjoy some protection against extradition. Although EU states do not protect other EU citizens from extradition, they have the primary duty to inform the respective EU state of origin about the extradition request. The latter then has the right to transfer its national.

The imbalance between the protection of German and non-German EU citizens does not violate the general prohibition of discrimination or the free movement of persons under Article 18 TFEU and Article 21 TFEU.

The alleged offence must be an extraditable offence within Section 3 IRG. Accordingly, it must be a criminal offence that is also punishable under German law and by a maximum of one-year imprisonment.

An extradition request must not be based on political or personal motives. If such a motivation can be proved, the request must be rejected by Section 6 IRG. Personal motives are, in particular, related to the religion, ethnicity or nationality of the person concerned.

Furthermore, extradition is inadmissible if the person concerned is threatened with the death penalty in the requesting state, Section 8 IRG. In Chile, the death penalty can only be imposed in cases of war since 2001. There have been no death sentences since 1985.

If a transfer, onward extradition or deportation of the person concerned to a third country is possible, the requested state must give its consent before extradition, Section 11 IRG.

Chile, as a presidential democracy, is committed to upholding both the rule of law and human rights. According to Article 3 of the ECHR, no one may be subjected to torture or other inhuman or degrading treatment. If there are concrete indications that the person concerned would be subjected to such treatment in the country of destination, extradition must be refused under German law.

After massive hunger strikes against the poor prison conditions in Chilean prisons in the early 2000s, conditions have improved but still do not meet human rights standards. The biggest problem is overcrowding. There are too many prisoners in too small spaces. In addition, there are too few prison staff to ensure the safety of the inmates.

Structural discrimination and violence against the Mapuche remains widespread. Arbitrary interrogations and detentions also take place against them. Amnesty International also reports the denial of medical treatment after security forces inflict injuries on protesters.