Extradition between Germany and Panama

Germany and Panama do not extradite their citizens as a matter of principle. In Panama, this results from Art. 518 Código Procesal Penal, which states that Panamanian citizenship can be a reason for refusing extradition in the context of proceedings.

In Germany, this is regulated by Art. 16 II of the German Basic Law (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 surrender, which is why it must be informed before the extradition.

Extradition traffic between the Federal Republic of Germany and other states is governed by the Law on International Mutual Assistance in Criminal Matters (IRG). According to Art. 1 para. 3 IRG, however, international treaties take precedence over the provisions of the IRG, which are only applicable if there is no extradition treaty with the respective other state. The same applies to the Panamanian side. According to Panama’s internal legislation, extradition proceedings are governed by international treaties and, if no such treaties exist, by the regulations of the Código Procesal Penal.

Panama and the Federal Republic have neither concluded a bilateral extradition treaty nor are they parties to a multilateral agreement that regulates extradition traffic between the two states. However, it does not follow that extradition does not take place between the two states. It is not a prerequisite for extradition practice that a corresponding agreement exists. Extradition can and does take place on a non-contractual basis. Therefore, special agreement exists only means that the procedure in the case of extradition between Germany and Panama is accordingly governed by the regulations of the IRG or those of the Panamanian Códigos Procesal Penal.

The human rights situation in other countries plays a decisive role in extradition proceedings. German authorities are always obliged to uphold the rule of law, which means that extradition requests from other countries must be refused if there is a reasonable suspicion that a person concerned could, for example, be violated in their right to a fair trial or to humane conditions of detention.

Usually, foreigners and Panamanian citizens can expect a fair trial in Panama. Non-Spanish speakers also have a right to translation. There have only been reports of corruption in proceedings against Panamanian politicians, but violations of procedural principles rarely occur.

The situation in Panamanian prisons, on the other hand, is more critical. With an occupancy rate of approx. 145% of the prisons in Panama are overcrowded and, humane detention conditions cannot be guaranteed without restrictions. Furthermore, there are repeated reports about the influence of gangs and widespread corruption in the prison system in Panama. In addition, Panama has a maximum security prison on the naval base “Punta Coco Island”, which, according to the UN Special Rapporteur on Torture and the UN Working Group against Arbitrary Detention, operates outside the official law enforcement apparatus. The prison has unsanitary conditions, and prisoners are transferred there without informing relatives or lawyers.

If extradition to Panama is threatened, it is necessary to examine in detail what conditions a person concerned can expect and whether there are indications that the observance of fundamental rights cannot be fully guaranteed. A thorough legal examination of the facts, the procedure and the basis of the extradition request is therefore essential and can make a decisive difference in the outcome of the proceedings.

The extradition procedure itself is similar on both sides. If a suspected person is wanted abroad, both states usually an Interpol Red Notice. In Panama and Germany, a person concerned can be taken into provisional extradition custody based on a Red Notice, provided that the Red Notice is based on sufficient information. After receipt of the formal request for extradition, detention pending extradition in Germany is governed by Section 15 IRG. The Panamanian Foreign Ministry is responsible for issuing a formal extradition request in Panama. Section 2 (1) IRG states that mutual legal assistance should normally be granted:

A foreign national who is being prosecuted in a foreign state for an offence or who has been convicted of an offence which is punishable there may be extradited to that foreign state upon the request of a competent agency for prosecution or for enforcement of a penalty or other sanction imposed for that offence.

The conditions that must also be fulfilled and under which German courts reject an extradition request can be found in the Sections 3 -12 IRG. In Panamanian law, passive extradition (in this case extradition from Panama to Germany) is governed by Art. 517-544 (Título IX, Capítulo II) Código Procesal Penal.