Extradition from Germany
to the USA

Extradition from Germany to the USA
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Facing extradition can be one of the biggest challenges in a person’s life, and advice relating to your rights is crucial at this time. At Schlun & Elseven Rechtsanwälte PartG, our lawyers are there for you in times of crisis and will provide comprehensive service. This page will outline the law relating to extradition between Germany and the USA and offer a general outline regarding the legal steps involved with the extradition process. However, if you are in a situation where you need urgent support, please get in touch with us directly using our contact details below. Our lawyers will guide you through the process.

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Extradition of German Citizens to the USA

Extradition from Germany to the USA is governed by the Extradition Treaty of 20 June 1978 between Germany and the United States of America alongside the Supplementary Treaty of 21 October 1986 and the Second Supplementary Treaty to the Extradition Treaty of 2006. Germany does not generally allow the extradition of its citizens, which is reflected in Article 7 of the agreement. Paragraph 1 reads: “Neither of the Contracting Parties shall be bound to extradite its nationals.” This results from the constitution, which must always be observed by Article 16 of the German Constitution. According to this paragraph, the extradition of German nationals is only exceptionally permitted to other EU countries, and certain international courts provided that “the rule of law is observed”. This allowance for extradition to EU member states is a recent development, but it does not extend to non-EU countries (“third countries”), including the USA.

Consequently, Germany and the USA do not have to extradite their citizens, but they can do so if they deem it appropriate and there are no legal concerns. Extradition requests addressed to the USA are processed by the US Department of State and the Department of Justice. Either side can only make them in cases where the alleged offence is one of those listed in the annexe to the Extradition Treaty. These listed offences include, for example, murder, intentional or negligent homicide, fraud and robbery. However, the last point states: “Any other act to which extradition may be granted by the law of both Contracting Parties”, which means that any offence not explicitly listed can in principle lead to extradition. The two main restrictions that must be observed in this case under German law under § 3 IRG are that the alleged offence is also punishable under German law (reciprocity of punishability) and if it is not a mere petty offence.

If Germany seeks the extradition of a US citizen from their home country, it must contact its US embassy, which forwards the extradition request to the US State Department. The State Department then gets the competent public prosecutor in the target´s district with the request to initiate extradition proceedings before a US federal court. In these proceedings, the court will review the evidence presented against the target and decide whether it is sufficient to issue an appropriate arrest warrant. At this time, the court will also determine whether there is sufficient suspicion that the target has committed an offence covered by the extradition treaty between Germany and the USA. If it turns out that there is sufficient suspicion of the commission of an extraditable crime, the court will submit its findings to the US State Department. The State Department will then decide whether the USA will extradite the person in question to the Federal Republic of Germany.

Extradition of citizens of other countries to the USA

The constitutional protection against extradition under Article 16 (2) German Constitution already mentioned does not extend to non-German citizens. Germany can thus, in principle, extradite nationals of other states, provided certain preconditions and minimum requirements are met. These preconditions are primarily regulated in bilateral or multilateral agreements. If there is no such agreement or no (specific) explicit regulation on a question in it, the (general) Law on International Mutual Assistance in Criminal Matters (IRG) applies. The indispensable prerequisite for extradition under German law are as follows:

  • The criminal offence must be punishable under German law and punishable in the maximum degree by a custodial sentence of at least one year.
  • There must be reciprocity, i.e., based on an assurance by the USA, it can be expected that a comparable German request would also be positively responded to in the USA.
  • There must be no obstacles to extradition, such as purely politically motivated proceedings.

Removal of a Red Notice from the USA – worldwide

If the USA requests a person’s apprehension and subsequent extradition, the American authorities can obtain an Interpol Red Notice for this person. Such a red notice can be challenged as a precautionary measure or only when it becomes known. Our experienced lawyers for extradition law will submit requests for information to the respective National Central Bureaus (NCBs) of Interpol on your behalf, prepare and file corresponding protective letters and work unerringly towards the cancellation of the Red Notice – so that you can once again move freely in the world without worrying about an immanent arrest and the associated consequences and risks.

Legitimate extradition under German law

Extradition requests need to be deemed legitimate under German law for Germany to carry them out. In cases where a foreign country, such as the USA, makes an extradition request and Germany deters that individual, they can provide their consent to simplified extradition under § 41 IRG or challenge it. If they do not consent, the prosecution must apply for a decision to the Higher Regional Court (OLG) under § 29 IRG. The Higher Regional Court then has to decide on the admissibility of the extradition. The decisive factor here is whether the extradition request was made correctly. Some of the powerful aspects and prerequisites that must be present for lawful extradition are the following:

  • Does the alleged crime constitute an extraditable crime or an unlawful act under German law? (§ 3 IRG)
  • Is there a threat of torture or inhumane treatment/conditions or punishment awaiting the individual in the requesting country? (Art. 3 ECHR; Art. 3 CAT)
  • Is there a possibility of the death penalty being used for the offence? If yes, is there a guarantee that the death penalty will either not be imposed or carried out in any case? (§ 8 IRG)
  • Does the risk exist that the defendant may be extradited or deported to a third state without German consent? (§ 11 (1) Nr.2 IRG)
  • Is the offence solely politically motivated (§ 6 IRG), or is it to do with military duties?
  • Can the defendant realistically expect a fair trial? (Art. 6 ECHR)

Should the extradition request or the judicial admissibility decision raise doubts about whether the requirements mentioned above are guaranteed and met, our legal team will take the appropriate legal steps and exhaust possibilities to prevent unlawful extradition.

It should be noted that it might not always be obvious when a country is seeking an extradition order for political or military reasons. However, a thorough legal investigation and analysis of the individual circumstances and available evidence can often uncover such factors.

Extradition of non-German EU citizens to non-EU member states

Suppose Germany is requested to extradite a person and differentiate between nationality. In that case, German or non-German citizens, the latter with increased protection via Article 16 of the German Constitution – it must also be differentiated whether the requestion state is an EU member state or not. In this respect, the ECJ has established an essential procedural requirement in the Petruhhin case (Case C-182/15 in NJW 2017, 378).

In this case, Mr Petruhhin, an Estonian national (an EU citizen), was arrested in Latvia (EU member state) based on a Russian extradition request. Therefore, it was a case of extradition of an EU citizen to a non-EU member state. The European Court of Justice ruled that an EU member state is not obliged to protect all other EU citizens residing on its territory from extradition. Therefore, citizens of other EU states do not enjoy the same level of protection as their nationals. However, the member state requested to extradite an EU citizen by a non-EU member state must first inform the member state of which the person in question is a national. This is because this Member State has a priority right to have their own national transferred for criminal prosecution before extradition to the non-EU Member States.

The same applies if the USA, which is also not a member state of the EU, submits an extradition request to Germany about a non-German EU citizen. Thus, the United States of America requests the extradition of a Dutch citizen from Germany. For example, the German authorities must first contact the Dutch authorities before taking such a step. The Netherlands, as another EU Member state, can then decide as a matter of priority whether it wants its citizen extradited to its territory or whether the person may be deported from Germany to the United States.

In addition to the extradition treaty that the Federal Republic of Germany has concluded with the USA, there is also another extradition treaty between the European Union and the United States of America. According to this agreement, the EU law does not prevent extradition. Germany as a member state can therefore extradite other EU citizens to the USA since neither the right to freedom of movement under Article 21 of the Treaty on the Functioning of the European Union (TFEU) nor the prohibition of discrimination under Article 18 TFEU stands in the way of this procedure. However, considering the ECJ mentioned above case law, Germany would have to inform the other member state beforehand. Furthermore, the gratin of extradition must comply with the agreement’s requirements and be expressly justified. In particular, the request must be based on an extraditable offence. Extraditable offences according to the extradition treaty between the USA and the EU are:

  • Offences punishable by the law of both the requesting and the requested country by a custodial sentence not exceeding one year or a more severe penalty;
  • Attempts to commit or participate in the commission of such an offence.

If several countries request the extradition of a person and there is no special prerogative of an EU member state, the executive authority of the requested (EU) state is authorised to decide which country the person should be extradited.

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