Extradition between Germany and South Korea

In principle, Germany does not extradite its citizens to third countries unless the person has expressly consented to extradition. This follows from Article 16 II of the German Basic Law (GG), which does not authorise the extradition of German citizens to countries that are not members of the European Union. In this respect, Germany has formulated a special reservation to Art. 6 of the European Convention on Extradition. This article leaves it up to states to decide whether to extradite their citizens or refuse extradition. The reservation drafted by Germany expressly prohibits the extradition of German citizens within the meaning of Art. 116 I GG with reference to Art. 16 II GG.

Non-German EU citizens, on the other hand, may be extradited to third countries. According to the ECJ, this does not violate the general prohibition of discrimination (Art. 18 TFEU) or the free movement of persons within the EU (Art. 21 TFEU). However, the member state of which the person concerned is a national has a priority right to transfer, so it must be informed before the extradition.

Germany is home to one of the largest Korean diasporas in the world, and South Korea is Germany’s third most important trading partner in Asia. Due to this lively exchange between the two countries, criminal law cooperation is also of corresponding importance, with particular attention to darknet crime and related sexual offences in Korea.

In Germany, the provisions on extradition can be found in the Act on International Mutual Assistance in Criminal Matters (IRG). Section 1 (3) IRG stipulates that bilateral and multilateral agreements with other states or international organisations take precedence over the IRG as they have become applicable national law. Such a treaty also governs extradition traffic with South Korea – the European Convention on Extradition, a multilateral treaty of the Council of Europe, which is also open to non-members of the Council of Europe. Since South Korea’s accession in 2011, extradition traffic with Germany has been primarily governed by the Convention.

The most important provision of the agreement is Article 1 of the European Convention on Extradition, which sets out the mutual obligation to extradite. It states:

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. (Art. 1 European Convention on Extradition)

It also specifies which criminal offences are to be extraditable under the provisions of the European Convention on Extradition and in which cases the Convention is not applicable. According to Art. 2 para. 1 of the Convention, all criminal offences are extraditable if they are punishable under the law of both states by a maximum term of imprisonment of at least one year. Regarding South Korea, it should be noted that most offences include the possibility of a prison sentence of (at least) one year. However, the requirement of double criminality applies, which means that the offence must also be extraditable under German law.

Extradition is not granted under the provisions of the Convention in the event of criminal liability for political offences (Art. 3 para. 1 of the Convention) or if it can be assumed that the extradition request is motivated by religious, ethnic, or similar persecution (Art. 3 para. 2 of the Convention). The agreement also does not apply to military offences following Art. 4 of the European Convention on Extradition. In addition, it only applies to fiscal offences under Art. 5 of the Convention if the contracting parties have expressly agreed to this among themselves, which is not the case for Germany and South Korea.

Many countries use the Interpol databases to issue Red Notices (often referred to as international arrest warrants). States can order provisional detention for wanted persons based on these notices. This is left to the national legal system and is also standard practice in Germany.

According to Art. 16 para. 3 of the European Convention on Extradition, states can also request each other to provisionally detain a person within the framework of the European Convention on Extradition via Interpol. However, South Korea has formulated a reservation to Art. 16 para. 3 of the Convention and declared that a request for provisional detention on the part of Korea will only be transmitted via diplomatic channels or directly via the respective ministries of justice, but not via Interpol. In practice, extradition requests from South Korea usually come from the Korean Minister of Justice, who often issues them at the request of the Attorney General.

If the person concerned has already been imprisoned in the extraditing state, the Korean Criminal Code recognises the possibility of offsetting this against the sentence imposed in Korea. However, a distinction must be made between imprisonment that serves as a punishment and imprisonment imposed prior to extradition but not intended to punish a person. Only the former can be offset against the prison sentence imposed, and the decision on this is the responsibility of the Korean court.

The rule of law in Germany applies to all state action following Article 20 (3) of the German Basic Law. This principle must, therefore, also apply when granting extradition. Although extradition is generally based on the mutual recognition of court decisions, if there is a suspicion that the rule of law is not upheld in a country from which Germany is requesting the extradition of a person, German courts may not grant the extradition.

According to Art. 11 of the European Convention on Extradition, extradition may be refused if an offence is punishable by death in the requesting state. However, this possibility does not exist if the state in question gives sufficient assurances that it will not carry out the death penalty. The death penalty still exists in South Korea today. However, it has not been carried out for around 30 years, even though it has been imposed in the past. In addition, South Korea has formulated a reservation to Art. 11 of the Convention, in which it is assured that the death penalty will not be carried out in the event of extradition to South Korea under the application of the European Convention on Extradition, even if a Korean court should impose it. Accordingly, Article 11 of the Convention cannot prevent extradition to the Republic of Korea.

However, it should be noted that South Korea has deficits in the rule of law despite a comparably well-functioning judicial system. A high incarceration rate of 103 per 100,000 people (in comparison to 67 per 100,000 people in Germany) and correspondingly overcrowded prisons are a significant problem. In addition, Amnesty International, for example, reports systematic sexism in the justice system.

It is, therefore, essential to consider the individual case concerning South Korea. In October 2022, for example, a British court rejected an extradition request from South Korea. According to the court, the proceedings were politically motivated. Furthermore, extradition would violate human rights, particularly the prohibition of torture under Art. 3 ECHR. The most significant violation of Art. 3 ECHR would be the chronically overcrowded prisons. The Republic of Korea did not appeal against the judgement.

This case shows that an extradition request from South Korea can be averted by invoking human rights and the rule of law. Even though a British court made the decision, the legal standard, the ECHR, is the same. Therefore, expert legal defence by a specialised, experienced team is crucial in such cases.