Extradition between Germany and China

Extradition between Germany and China

A threatened extradition to a third country can mean more than the deprivation of liberty itself. In some cases, the concerned persons must also fear for their physical integrity, even their very lives.

Schlun & Elseven is an internationally active law firm specialising, among other things, in representing clients in extradition proceedings. Our extradition lawyers have the necessary expertise and years of experience in dealing with Interpol and the extradition authorities to represent you with equal competence and commitment during this difficult time.  They assist clients who are to be extradited from or to Germany and take on the defence in all Interpol proceedings to obtain the cancellation of Interpol Red Notices. In the absence of a Chinese-German extradition agreement, extraditions can take place based on general laws. In Germany, extradition requirements are based particularly on the IRG, the Law on International Mutual Legal Assistance in Criminal Matters.

Extraditions between Germany and China are rare. In 2015, China last submitted an extradition request to Germany, which was granted. In 2019, China approved an extradition to Germany.

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Extradition of German Citizens

German citizens are protected against extradition by the German Basic Law. Article 16 II of the German Basic Law (GG) only allows extradition to other EU states or international courts in exceptional cases. China is not a member state of the EU, so extraditions of German citizens are out of the question.

Extradition of non-German EU Citizens

In contrast to German nationals, non-German EU citizens can, in principle, be extradited. According to the ECJ, the general prohibition of discrimination or the free movement of persons under Art. 18 TFEU and Art. 21 TFEU do not prevent such different treatment.

Removal of a Red Notice from China – worldwide

If China requests a person’s apprehension and subsequent extradition, the Chinese authorities can easily obtain an Interpol Red Notice for this person. Such a red notice can be challenged as a precautionary measure or only when it becomes known. Our experienced lawyers for extradition law will submit requests for information to the respective National Central Bureaus (NCBs) of Interpol on your behalf, prepare and file corresponding protective letters and work unerringly towards the cancellation of the Red Notice – so that you can once again move freely in the world without worrying about an immanent arrest and the associated consequences and risks.

Extradition Requirements under the IRG

According to the requirements of the IRG, any foreigner who has committed a criminal offence abroad can, in principle, be extradited, cf. Section 2 III IRG.

The offence committed must be punishable under German law and by a maximum of at least 1-year imprisonment, according to Section 3 IRG.

An extradition request must be refused if political or personal motives are involved in the request, according to Section 6 IRG. In the case of military breaches of duty, extradition also does not take place, according to Section 7 IRG.

Transfers, onward extraditions and deportations of the person concerned to third countries always require the consent of Germany under Section 11 IRG.

Possible extradition obstacles

Death Penalty:

The imposition of the death penalty is a clear obstacle to extradition under Section 8 IRG. The requesting state can give an assurance that it will not impose the death penalty so that extradition may take place. However, regarding China, such an assurance should not lead to the granting of extradition. China keeps secret how many death sentences are carried out. On the one hand, this secrecy makes it impossible to determine how many people have already been executed. On the other hand, in the event of extradition, it cannot be ruled out that the death penalty would not be carried out in secret. Thus, in the case of any offence for which the death penalty is provided under Chinese law, it can be assumed that extradition will be rejected.

Human and civil rights:

No one may be subjected to torture or other inhuman or degrading treatment, cf. Art. 3 ECHR. Extradition must be refused if such treatment is to be expected in the requesting country.

China is known for serious and systematic human rights violations. In addition to the known human rights violations, it should be noted that the Chinese authorities do not release any information in many cases. Thus, the exact human rights situation is challenging to assess.

The Federal Agency for Civic Education speaks of China’s poor state of human rights. There are reports of systematic torture, with abuses ranging from beatings and burnings to sexualised violence.

Many proceedings in Chinese courts are conducted without legal representation, and lawyers who advocate for human rights defenders are themselves put on trial. According to Art. 6 ECHR, every person has a right to a fair trial. Thus, violations of the rule of law can also stand in the way of extradition.

Civil rights, especially freedom of expression, are severely restricted. At the latest since the introduction of the Personal Information Protection Act, access to the internet has been restricted.

Furthermore, China has been criticised for mass DNA collection since 2022. According to official reports, China only wants to create a database for fighting crime. Regardless of the purpose pursued, the storage of the DNA profiles of Chinese citizens massively interferes with their personal rights.

European Court of Human Rights

On 6 October 2022, the ECHR ruled that extradition to China should not occur. In the event of extradition to China, the person concerned claimed that their right under Article 3 of the ECHR would be violated because they would be subjected to massive ill-treatment there.

In the judgement, the ECHR quoted several passages from the UN Committee against Torture, which stated that torture and other ill-treatment were common practice in the Chinese penal system. Negative reports by the US State Department, statements by Amnesty International, Human Rights Watch and Freedom House are also cited.

The ECHR concluded that the extent of torture and other ill-treatment could be equated with a general situation of violence. Therefore, the extradition to China was a violation of Art. 3 ECHR.

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