Extradition from Germany to the USA

Extradition from Germany to the USA is governed by the Extradition Treaty between the Federal Republic of Germany and the United States of America of 20 June 1978 and the supplementary treaties of 1986 and 2006. Neither the Extradition Treaty nor German law provide for the extradition of German nationals. Article 7 (1) sentence 1 of the Extradition Treaty makes it clear that the contracting parties are not obliged to extradite their own nationals. The German Basic Law (German Constitution) also precludes the extradition of German nationals. According to Article 16 (2) of the Basic Law, the extradition of German nationals is excluded. It may only be authorised by way of exception to other EU countries and certain international courts, provided that “the principles of the rule of law are upheld.” This authorisation for extradition to EU member states is a recent development but does not extend to other non-EU countries (“third countries”), including 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.

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.

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.