Extradition to the USA: Legal Opinions and Comprehensive Case Management

A legal opinion on an extradition request contains a detailed examination of whether legal obstacles stand in the way of lawful extradition. Complex legal questions are thus prepared for courts and authorities in a convincing and well-founded manner. It is examined and argued in detail whether:

• A pending extradition would be proportionate
• A transfer would constitute a violation of the fundamental rights or human rights of the person concerned, or
• The request is subject to formal or substantive flaws

A well-founded legal opinion prepared by experts thus also serves to assess the prospects of success of various legal remedies and can form the basis for diplomatic negotiations. Our lawyers specialising in extradition law and Interpol proceedings have extensive experience in preparing legally sound and convincing opinions and examine your case with the utmost care.

In addition to the possibility of exorbitantly high and lifelong sentences, the death penalty is also legal in 27 of the 50 US states. This constitutes an extradition obstacle for Germany, as the death penalty was abolished in West Germany as early as 1949 and has since been constitutionally prohibited. The extradition treaty between Germany and the USA therefore contains the provision that Germany only extradites persons on the condition that the death penalty will not be carried out in the specific case.

Prison conditions in the USA can also constitute an extradition obstacle. Many US prisons are severely overcrowded and exhibit deficient conditions, particularly the lack of single or double cells, inadequate medical and psychological care, and prolonged solitary confinement.

Extradition from Germany to the USA is generally governed by the Extradition Treaty between Germany and the United States of America of 20 June 1978, as well as the supplementary treaties of 1986 and 2006.

Neither the extradition treaty nor the German constitution (Grundgesetz) provides for the extradition of German nationals. Article 7(1), sentence 1 of the extradition treaty stipulates that the contracting parties are not obliged to extradite their own nationals. Furthermore, according to Article 16(2) Grundgesetz, the extradition of German nationals is excluded. Whilst the Grundgesetz exceptionally permits extradition to other EU countries and certain international courts, provided that “principles of the rule of law are observed”, this permission expressly does not extend to other non-EU countries (“third states”), including the USA.

The aforementioned constitutional provision that no German nationals may be extradited from Germany consequently does not extend to nationals of other nations residing in Germany. The conditions for the extradition of a person without German nationality to the USA are set out in the extradition treaty between Germany and the USA. The following requirements must be met:

• The offence must be punishable under both US law and German law. For criminal prosecution, the minimum sentence must be more than one year’s imprisonment, and for the enforcement of a sentence or arrest warrant, the duration of the sentence still to be served must be at least six months.
• The extradition request must not be of a political nature or concern a military offence.
• The person sought must not have been finally convicted or acquitted by German courts for the offence for which extradition is requested. Furthermore, the European Court of Justice has recently decided that Germany must also refuse extradition if the person sought has been convicted in another Member State of the European Union – regardless of whether the person is an EU citizen.
• The criminal prosecution must not be statute-barred.
• Extradition may be refused if the person sought is already being prosecuted in Germany for the same offence for which extradition is requested.
• The USA must provide an assurance that the death penalty will not be carried out.

If the person without German nationality residing in Germany is an EU citizen, certain special rules apply. Whilst the European Court of Justice has decided that the German state does not have to protect EU citizens resident in its territory from extradition like Germans pursuant to Article 16(2) Grundgesetz, Germany must first inform the Member State of which the person concerned is a national. It was thus established that citizens of other EU states do not enjoy the same level of protection as their own nationals.

However, the respective Member State of which the person concerned is a national has a priority right to have its own national transferred for the purpose of criminal prosecution. This right can be exercised by the state before extradition to a non-EU Member State, such as the USA, takes place. The right to freedom of movement under Article 21 of the Treaty on the Functioning of the European Union (TFEU) or the prohibition of discrimination under Article 18 TFEU does not speak against this.

The requirements for lawful extradition to the USA depend in detail on the respective provisions that the requested country has made in an extradition agreement with the USA. Whilst these bilateral agreements differ in certain details, most agreements contain matching provisions. These include the requirement that:

• an extraditable offence exists, or
• the act must be punishable under both legal systems, or
• sufficient evidence must be available.

Our extradition lawyers analyse the respective agreements, the specific circumstances of your case, and the laws of the requested state in precise detail. With regard to domestic legal remedies, we additionally draw on our network of extradition experts worldwide. Beyond national and European legal remedies against an extradition request, we exhaust all international and diplomatic channels. The involvement of consulates and NGOs can generate political pressure that can bring about the suspension of extradition.

In cases where no extradition agreement exists between the USA and another country, extradition is generally excluded. Such an extradition agreement is currently lacking, for example, with China, Afghanistan, and Russia. Should extradition nevertheless be requested in such a case, complex legal and political questions arise, in which we advise our clients on alternative legal avenues and the possibilities of diplomatic protection.

In Germany, there is no possibility of challenging the judicial decision regarding an extradition request through ordinary legal remedies. Against the decision of the competent German Higher Regional Court (OLG), only a constitutional complaint can be filed before the German Federal Constitutional Court. Such a constitutional complaint must regularly be filed with an application for an interim order pursuant to and must be sufficiently substantiated. The requirement for swift action and sufficient substantiation of such an application presupposes that it is handled by particularly experienced lawyers in this field.

If such a constitutional complaint remains unsuccessful and domestic legal remedies are thus exhausted, there is the possibility of filing a complaint before the European Court of Human Rights (ECtHR) and obtaining interim legal protection. It can be argued that the person concerned is violated in their human rights under the European Convention on Human Rights (ECHR) by the European state’s consent to extradition.

Defense against an extradition request requires numerous administrative and procedural steps, including communication and coordination with several international legal experts and law enforcement authorities. It is of utmost importance that all information is kept updated. Through effective case management, it is possible to bundle several cases of extradition proceedings and thus process them more efficiently. An enormous advantage is that the defense can be better planned temporally and strategically, and coordination with different legal systems is pursued through one office. Our practice group for extradition law regularly cooperates with legal experts worldwide and draws on an extensive professional network of private investigators, experts, interpreters, and forensic analysts.

Defense against extraditions to the USA requires a comprehensive strategy that exhausts all legal levels and options for action. As a firm with a particular focus on extradition law, our lawyers have successfully defended against numerous extradition requests from the USA and prepared well-founded opinions for clients as well as for international law firms. With the utmost care, our team analyses your case in detail and examines all legal protection options swiftly and thoroughly. Rapid and discreet action is particularly essential in extradition cases. Furthermore, we provide comprehensive advice on protecting your personal rights in the event of an extradition request, as well as on our services in the field of reputation management.