Extradition from Germany 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.

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.