Extradition between Germany and South Africa

According to Art. 6 (1)a of the EuAlÜbk, all contracting states are entitled to refuse to extradite their citizens. Furthermore, Art. 6 (1)b of EuAlÜbk allows the states to define the term “national” within the meaning of the Convention themselves by means of a declaration upon accession to the Convention. During its accession, South Africa made an additional declaration to Art. 6 (1)b EuAlÜbk, according to which the term “national” within the meaning of the South African legal system means persons who have acquired South African nationality by birth, descent or naturalisation. This also includes persons who hold dual citizenship. The Republic of South Africa also explicitly confirms in this declaration that its citizens may be extradited. The fact that South Africa recognises dual citizenship does not prevent the extradition of a person even if they also hold the citizenship of a country that prohibits the extradition of its nationals.

In contrast, Germany does not extradite its citizens unless a person has expressly consented to extradition. This is regulated by Article 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 to extradition, which is why it must be informed before the extradition.

Article 1 of the EuAlÜbk establishes the mutual obligation of the contracting states to extradite a person:

“The Contracting Parties undertake to surrender to each other, subject to the provisions and conditions laid down in this Convention, all persons against whom the competent authorities of the requesting Party are proceeding for an offence or who are wanted by the said authorities for the carrying out of a sentence or detention order ”

Furthermore, the agreement sets out the precise legal conditions under which the obligation under Art. 1 EuAlÜbk applies and in which cases exceptions to the obligation 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. South Africa has issued a reservation to this provision, according to which a criminal offence is only extraditable if the sentence imposed is at least six months.

Furthermore, the agreement 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 obligation 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, customs or fiscal offences, are another special case. In these cases, extradition is only granted if it has been explicitly agreed by the contracting parties concerned (Art. 5 EuAlÜbk).

In addition to the European Convention on Extradition provisions, which may exempt affected states from the obligation to extradite, German authorities must always observe the rule of law principle in any state action. Concerning 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 in particular if there are concrete indications that a person cannot expect a fair trial under the rule of law in the requesting state or that someone can expect inhumane conditions of detention or torture. With regard to South Africa, in the course of extradition proceedings, the expected conditions of detention should be closely examined. In particular, overcrowding in prisons can lead to inadequate detention conditions, with a current occupancy rate of over 133%.

Furthermore, human rights organisations such as Amnesty International or Human Rights Watch report disproportionate police violence against peaceful protesters and torture and deaths due to violent state action. Therefore, compliance with the rule of law cannot be assumed in principle. In the case of threatened extradition to South Africa, what a person concerned can expect should be thoroughly investigated. Therefore, in relevant cases, a comprehensive legal examination of the circumstances is essential to ensure sufficient protection of fundamental rights. It can have a decisive influence on the outcome of a case.