International Extradition Treaties and the Rule of Law

The sovereignty of states prohibits other states from carrying out official acts such as investigations or arrests on foreign territory. Therefore, in various situations, states depend on cooperation with other states within the framework of international legal assistance. For example, international extradition proceedings in the criminal law sense also fall within the scope of international legal assistance in criminal matters.

In Germany, international mutual legal assistance is regulated by bilateral treaties, the European Extradition Convention of the Council of Europe, and the Act on International Mutual Assistance in Criminal Matters (IRG). However, Section 1 (3) of the IRG expressly stipulates that international extradition treaties generally take precedence over the provisions of the IRG. Germany is a member of many bilateral and multilateral treaties, on which extradition traffic is now primarily based. The Framework Decision on the European Arrest Warrant within the EU is decisive for extradition practice.

Extradition treaties stipulate in which cases and under which conditions states extradite persons to other states. These include, for example, the type of offences for which a person can be extradited and the threat of imprisonment.

Definition: The term extradition treaty refers to a treaty under international law regarding transferring a suspect to another country where the suspect is wanted based on an arrest warrant.

Extradition treaties can be concluded bilaterally between two states, but alliances of states can also conclude extradition treaties, or states can join a multilateral treaty.

States with which Germany has concluded a bilateral extradition treaty include

• Australia
• Hong Kong
• India
• Canada
• Singapore
• USA

Within Europe, a distinction must be made between extradition between EU states and between Germany and a European state that is not an EU member. Within the EU, the basis for international legal assistance and extradition is the Framework Decision 2002/584/JHA of 13 June 2002, the aim of which is to be able to enforce an arrest warrant issued by another EU state as quickly and effectively as possible. The basis for this decision is the principle of mutual recognition: the requested state does not carry out its separate examination of the arrest warrant, but the extradition of the wanted person takes place largely automatically after their arrest. This obligation to extradite applies within the EU even in cases where the suspect’s offence does not constitute a criminal offence in the requested country. In the case of extradition based on the European Arrest Warrant, criminal liability is not based on the principle of mutual criminality but on a list of offences and offence areas in the Framework Decision.

Since the UK’s withdrawal from the EU, extradition between Germany or another EU state and the UK is no longer based on the European Arrest Warrant. The European Convention on Extradition now applies.

The European Convention on Extradition is an agreement of the Council of Europe that forms the basis for extraditions between the member states of the Council of Europe and the other members of the Convention. In addition to the EU member states, the members of the Council of Europe also include numerous European states that are not members of the EU. The Council of Europe is independent of the European Union. Moreover, the Council of Europe’s conventions are often not limited to intra-European cooperation but have also been imposed on non-member states. In the case of the European Convention on Extradition, these include Israel and South Africa, for example. Due to the large number of members in particular, the European Extradition Convention is of enormous practical importance today.

Article 1 of the European Convention on Extradition sets out the extradition obligations of the individual contracting states. Accordingly, in the event of an extradition request, each contracting state is obliged to extradite a person to the requesting state if all the conditions agreed upon are met. The rules on extraditable offences are set out below. According to Article 2 of the Convention, these offences are punishable by a custodial sentence of at least one year or more based on the principle of double criminality. If a conviction has already been handed down in the requesting state, the sentence there must be at least four months.

Non-European contracting states/Eurasian contracting states are, among others

• Armenia
• Azerbaijan
• Georgia
• Israel
• Russia
• South Africa
• South Korea

In addition to the considerable number of countries with which Germany has a treaty-based extradition practice, there are other countries with which Germany has neither a bilateral nor a multilateral extradition treaty. In these cases, there is no guarantee that extradition will not take place, but extradition is less likely.

Countries to and from which extradition is generally not granted include

• Bangladesh
• Guatemala
• Iran
• Kazakhstan
• Cuba
• Philippines

Courts must always decide based on what a person can specifically expect in the event of extradition to the requesting state. If it is sufficiently demonstrated why extradition would violate the fundamental rights of the person concerned in the specific individual case, the extradition request must be refused. The decisive factors here are often factors such as the expected conditions of detention or whether a person can expect a fair trial in the requesting state.

If the court does not have enough information to rule out a violation of the fundamental rights of the person concerned, the court can request more information from the authorities of the requesting state. Therefore, the court’s decision often depends on whether the explanations provided by foreign authorities convince German courts that the respect for human rights can also be guaranteed in the event of extradition.