Extradition between Germany and Georgia

In principle, Germany does not extradite its citizens unless the person has expressly consented to extradition. This is regulated by Article 16 II of the German Basic Law (German Constitution – GG), which stipulates that German citizens may not be extradited to countries that are not members of the European Union. Non-German EU citizens may nevertheless be extradited to third countries. According to the ECJ, this practice violates neither the general prohibition of discrimination under Article 18 TFEU nor the free movement of persons within the EU under Article 21 TFEU. However, the member state to which the citizen concerned belongs has a priority right of transfer, which is why it must be informed before the extradition.

In Germany, the Law on International Mutual Assistance in Criminal Matters (IRG) lays down the legal basis for extradition. Section 1 (3) IRG stipulates that international law provisions take precedence over the provisions of the IRG insofar as they have become applicable to domestic law. Therefore, extradition proceedings are primarily determined by multilateral and bilateral treaties between Germany and other states or international organisations. This also applies to extradition between Germany and Georgia. Both states are members of the Council of Europe and have signed the European Convention on Extradition (EuAlÜbk) with the first and second additional protocols.

In Art. 1 EuAlÜbk, the international agreement obliges the contracting states to extradite requested persons mutually. The contracting parties commit themselves to extradite persons who are being prosecuted by the judicial authorities of the requesting state for a criminal offence or who are wanted for the execution of a sentence or a detention order.

Georgia has formulated a reservation to this provision, stipulating, among other things, that the Georgian authorities will not consent to extradition if it would negatively affect the condition of the person concerned.

Furthermore, the agreement sets out the precise legal conditions under which the obligation under Art. 1 EuAlÜbk applies and in which cases exceptions may be made. Thus, Art. 2 (1) EuAlÜbk stipulates that extraditable offences are only those that, under the law of both states, must be punishable by a maximum term of imprisonment of at least one year. If a sentence has already been imposed, Art. 2 (1) EuAlÜbk stipulates that it must be at least four months.

Furthermore, the convention stipulates that extradition in the case of a politically punishable act is not granted based on the EuAlÜbk (Art. 3 (1) EuAlÜbk). However, obligations under other multilateral or bilateral agreements remain unaffected by this provision. The convention is also not applicable to military offences, which means that the duty to extradite under Article 1 of the Convention does not apply in these cases (Article 4 of the Convention). Fiscal offences, i.e., tax, foreign exchange or customs offences, are another special case. In these cases, extradition is only granted if this has been explicitly agreed by the contracting parties concerned (Art. 5 EuAlÜbk).

In addition to the provisions of the European Convention on Extradition, which may exempt affected states from the obligation to extradite, German authorities must always observe the rule of law in any state action.

Regarding extraditions, this means that they may only be granted if it can be assumed that the requesting state also respects the principle of the rule of law in the specific case. German authorities may, therefore, not grant extraditions if there are concrete indications that the person concerned cannot expect a fair trial in the requesting state or must expect inhumane conditions of detention or torture after the extradition has taken place.

This matter can undoubtedly be a problem regarding extraditions to Georgia, as there are repeated reports about the desolate state of the prisons, torture, overcrowding and unofficial structural hierarchies among the inmates. The Council of Europe’s Committee against Torture, among others, regularly observed violations of Article 7 of the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment during visits to Georgian prisons. The Committee’s last ad hoc visit to monitor progress occurred in March 2023.

Moreover, even a fair trial is not guaranteed according to the rule of law standards. For example, the Amnesty International Country Report 2022/2023 reports on the growing political influence on the administration of justice as well as selective and politically motivated prosecution of political opponents and critical media.

If a person is threatened with extradition to Georgia, it is possible to prevent this if it can be shown that in the specific case, corresponding principles of the rule of law would also be threatened by extradition. This requires precise legal work and an exact examination of the case’s circumstances. If you are facing or expecting an extradition request from Georgia, please do not hesitate to contact us directly so that we can take the appropriate legal steps to defend you.