A favourable decision regarding an extradition request is generally based on the conclusiveness of the submission regarding the criminal liability of the person concerned. However, other aspects are considered, such as the requirement that the alleged offence is punishable in the requested state. If there is a suspicion of political or personal persecution by means of the extradition request, it is rejected.
Many states also consider whether the human rights of the extradited person would be respected in the requested state.
Please, do not hesitate to contact the extradition and Interpol law team at Schlun & Elseven Rechtsanwälte if you require specialised legal advice on these matters.
Legal basis for the inclusion of human rights
The legal basis is initially the Universal Declaration of Human Rights, which all member states of the United Nations have signed. In this declaration, all signatory states undertake to work towards universal respect for and observance of human rights.
However, the Declaration of Human Rights is not a binding treaty under international law but a non-binding declaration of intent in legal terms.
Alternatively, regional human rights treaties can be used as a legal basis. These are binding under international law and have been ratified by most states. Significant here are the European Convention on Human Rights (ECHR), the American Convention on Human Rights (AMRC), the Arab Charter on Human Rights and the African Charter on Human and Peoples’ Rights (Banjul Charter).
Of relevance are Article 3 ECHR, Article 5 AMRC, Article 13a of the Arab Charter on Human Rights and Article 16 Banjul Charter. These articles protect physical integrity and prohibit the use of torture.
The individual state may also be obliged to weigh extradition against the human rights of the person concerned through national regulations.
Human rights in German extradition proceedings
The danger of a human rights violation for the person concerned must always be weighed against obligations under international law and freedom of action in foreign policy. The structures and contents of foreign legal systems and, thus, also the sovereignty of other states must be respected in principle.
According to its Basic Law, the German state is bound by fundamental rights in all its actions and decisions, Art. 1 III GG. Accordingly, it must always consider and respect the minimum requirements of fundamental and human rights, even in decisions on extradition.
The human rights assessment of the detention conditions in the requesting state is particularly relevant. According to Article 1 I GG, in conjunction with Article 3 of the ECHR, these must meet certain minimum standards not to constitute an obstacle to extradition. All detention conditions are interrelated and considered to determine a human rights violation, as there are no rigid thresholds for this. Instead, the assessment is a case-by-case decision at the discretion of the extradition authority and the court.
If there is a threat of torture or inhuman or degrading treatment, the person to be extradited has the right of defense against the act of cooperation by the German state that is necessary for extradition, i.e., a right not to be extradited.
With the idea of not wanting to proselytise other legal systems, the requesting state only has to grant the respective person concerned the detention conditions that Germany deems acceptable. The decision on an extradition request is not about the entire system, only about the individual.
In national law, Germany has expressly included the prohibition of extradition in the case of the death penalty because of its special weighting, Section 8 IRG. The right to life is to be protected to the maximum. If the person concerned is threatened with the death penalty, extradition may not be carried out under any circumstances. If you are unsure about an investment, our lawyers for capital investment and capital market law will be happy to take another look at the offer.
Exemplary German case law
The Higher Regional Court of Brandenburg declared a Russian extradition request inadmissible at the beginning of 2022, considering possible human rights violations. It was emphasised that German courts are prevented from cooperating in the extradition of a persecuted person who is threatened with cruel, inhuman or degrading treatment or punishment in the requesting state. Reference was made both to the war with Ukraine, which was an indication of disregard for minimum standards of international law, and to Russia’s announced withdrawal from the Council of Europe, which means that Russia is no longer bound by the ECHR. The conclusion of the decision is a rejection of the extradition request due to the possible non-observance of the human rights of the person concerned.
Also in 2022, the Higher Regional Court of Brandenburg stated in proceedings on a Greek extradition request that the decision on the admissibility of an extradition can be suspended for the time being if the expected conditions of detention are still unclear and an assurance is first obtained that the person concerned will be treated following human rights. Furthermore, it was emphasised in this ruling that objective evidence for the actual existence of a threat situation is always required if the person concerned claims to expect worse treatment for personal reasons.
Thus, in 2022, the Higher Regional Court of Hamm ruled about an extradition request by Romania that an extradition is inadmissible if it contradicts fundamental principles of the German legal system or the minimum standard in the field of human rights that is binding under international law. In its decision, the court emphasised that prison space is a significant, but not the sole determining factor in assessing prison conditions. The Romanian penitentiary system was assessed as structurally and generally deficient. However, as assurance was given for the specific case that the person to be extradited would be treated following human rights, the court declared the extradition to Romania admissible.
Practice Group: German Extradition & Interpol Law
Practice Group:
Extradition & Interpol Law
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