An extradition request usually represents a tremendous emotional burden and a legal challenge for those affected, which should not be faced under any circumstances without experienced legal support.
As a multidisciplinary, globally active law firm, Schlun & Elseven Rechtsanwälte is your reliable partner to protect you from extradition effectively. In doing so, we not only advise and represent clients who are to be extradited from or to Germany but also use all our expertise and many years of experience to obtain a swift cancellation of Interpol Red Notices – depending on the country which initiated them. If extradition proceedings are already pending against you, or if you anticipate such action, contact us immediately so we can take appropriate countermeasures.
Extradition between New Zealand and Germany is non-contractual, so extradition requests between these two countries are decided following the general rules. In Germany, the IRG, the Law on International Mutual Legal Assistance in Criminal Matters, regulates the conditions under which extradition can occur. Extradition requests are transmitted through diplomatic channels.
In one case, according to the extradition statistics of the Federal Office of Justice, an extradition request from New Zealand to Germany was last granted in 2019. Germany requested extradition from New Zealand in one case in 2020.
Consequently, it cannot be said that there is lively extradition traffic between the two states. Therefore, the details of each case must be examined more closely, as there is little case law on this subject to which reference can be made.
Extradition of German Citizens
The German constitution generally protects German citizens from extradition. Article 16 II of the German Basic Law permits the extradition of German citizens to other EU states or international courts by exception, provided that the principles of the rule of law are upheld.
According to the ECJ, EU citizens may be extradited to third countries even if the requested state does not extradite its citizens. This distinction violates neither the general prohibition of discrimination nor the free movement of persons.
New Zealand does not distinguish between its nationals and others regarding extradition, so New Zealand nationals can be extradited from New Zealand to Germany.
Extradition Requirements under the IRG
In principle, every foreigner can be extradited to the country where they have committed a criminal offence to face the legal consequences of this offence, Section 2 IRG. The IRG emphasises once again that Germans are not extradited.
For extradition to be lawful, the act committed must also be punishable in Germany and by a maximum of at least one-year imprisonment, Section 3 IRG.
If the person concerned has already been convicted with the final effect and is to be extradited for execution, such extradition is only permissible if the sentence to be executed constitutes a custodial sanction and at least four months of imprisonment are still outstanding, Section 3 III IRG.
A request must be rejected if there is a well-founded suspicion that the motives are political, personal or military, Sections 6, 7 IRG. If the person concerned would be subjected to aggravated treatment after extradition due to political or personal characteristics, an extradition request is also inadmissible.
Potential Problems of Extradition
Extradition may be inadmissible for many different reasons and be refused accordingly.
According to Section 8 IRG, the imposition of the death penalty constitutes an obstacle to extradition. However, the requesting state can give an assurance that it will not impose the death penalty so that extradition may take place.
Since 1989, the death penalty has been abolished in Germany and New Zealand. Accordingly, the death penalty is no longer an obstacle to extradition between these two states.
Furthermore, no one may be subjected to torture or other inhuman or degrading treatment, Art. 3 ECHR. If such treatment is to be expected in the requesting country, extradition must be refused.
At the end of 2022, allegations of torture arose on the part of a detainee. However, this has not yet been confirmed.
Poor prison conditions can also constitute an obstacle to extradition in the sense of Art. 3 ECHR. Amnesty International reports protests by detainees against the “undignified and meagre conditions of detention”. However, these poor prison conditions are arguably limited to certain prisons. Other prisons in New Zealand are known for their particularly positive facilities. For example, in 2018, New Zealand opened the first “humane detention centre” with a “garden of the senses” to improve resocialisation opportunities for inmates.
Accordingly, when requesting extradition, particular attention must be paid to the detention centre where the person concerned will be placed.
According to Art. 6 ECHR, every person has the right to a fair trial. Thus, violations of the rule of law can also stand in the way of extradition. Germany and New Zealand have the rule of law. Violations of Art. 6 ECHR cannot be assumed in principle.
Practice Group: German Extradition & Interpol Law
Practice Group:
Extradition & Interpol Law
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