Legal framework for extradition in Germany
Extradition proceedings are regulated by the German Basic Law (Grundgesetz) and the Act on International Mutual Assistance in Criminal Matters (Gesetz über die internationale Rechtshilfe in Strafsachen, IRG). In Germany, international mutual legal assistance is regulated by bilateral treaties, the Council of Europe’s European Convention on Extradition and the Act on International Mutual Assistance in Criminal Matters (IRG). Section 1 (3) of the IRG explicitly states that international extradition treaties take precedence over the provisions of the IRG. Germany is a party to many bilateral and multilateral treaties. The Framework Decision on the European Arrest Warrant within the EU is of decisive importance for extradition practice.
Neither the Extradition Treaty nor German law provides for the extradition of German citizens. Sentence 1 of Article 7 (1) of the Extradition Treaty clearly states that the parties are not obliged to extradite their own citizens.
The German constitution also does not allow for the extradition of German citizens. The extradition of German citizens may only be permitted on an exceptional basis to other EU countries and certain international courts, provided that the “rule of law” is respected.
Challenging extradition may be based on various legal arguments:
- Violation of human rights, risk of torture or inhuman treatment;
- Risk of unfair trial
- Application of the death penalty
- Extradition represents a disproportionate interference with the right to respect for the private and family life of the requested person
- Failure to comply with procedural requirements (incorrect preparation of documents or failure to comply with deadlines)
- Absence of double criminal liability
- Insufficient evidence
- Inadmissibility of double punishment ne bis in idem
- Political crimes
- German citizenship
- Expiry of the statute of limitations
The requested person has the right to a lawyer to represent him/her in court. The Regional Court (Oberlandesgericht) will assess the admissibility of extradition based on the arguments and evidence presented. The requested person or his/her lawyer may submit objections and evidence in support of the challenge.
If the court finds extradition admissible, the decision can be appealed to the Federal Supreme Court (Bundesgerichtshof), especially in cases of alleged violations of constitutional rights. During the appeals process, a stay of extradition may be requested until a final decision has been made.
If all domestic remedies have been exhausted, the requested person may appeal to the ECHR with a complaint of human rights violation. The ECHR may decide to stay the extradition until the case has been examined.
A constitutional complaint (Verfassungsbeschwerde) is a legal remedy that allows individuals and legal entities to challenge the actions of state bodies that violate their fundamental rights.
A constitutional complaint can be filed by individuals (German citizens and foreigners residing in the country) and legal entities.
Before filing a constitutional complaint, all available legal means must be used:
- Appealing a decision of a regional court to the Federal Supreme Court (Bundesgerichtshof)
- Appealing decisions of the executive branch to administrative courts
A constitutional complaint must be filed within one month of receiving the final decision. The complaint must be in writing. It is necessary to clearly indicate the fundamental rights violated and justify how they were violated. Copies of all previous decisions and documents related to the case must be attached.
The court checks whether the complaint meets the formal requirements. If the complaint is found admissible, the court proceeds to consider the merits. The court may grant the complaint and overturn the contested decision, or reject it.
The decisions of the Constitutional Court are final and binding on all state bodies. If the complaint is granted, extradition cannot be carried out.
Extradition Law beetween Germany and other counties
Germany has concluded bilateral treaties with many countries. Such agreements regulate in which cases and under which conditions countries extradite persons to other states. In the absence of a treaty, extradition can be carried out on the basis of reciprocity and subject to the conditions of German law.
Within the European Union, Germany operates in accordance with the European Arrest Warrant (EAW). This mechanism has replaced traditional extradition procedures between EU member states, significantly simplifying and accelerating the extradition process. The EAW is based on the principle of mutual recognition of judicial decisions, which allows law enforcement agencies to quickly cooperate without lengthy diplomatic procedures.
Extradition from Germany to the United States is governed by the Extradition Treaty between the Federal Republic of Germany and the United States of America of June 20, 1978, and the supplementary treaties of 1986 and 2006.
As mentioned earlier, it is not possible to extradite German citizens to the United States. However, Germany can extradite citizens of other countries if certain preconditions and minimum requirements are met. The International Mutual Assistance in Criminal Matters Act (IRG) states that
- The criminal offence must be punishable under German law and be punishable at most by imprisonment for a term of at least one year
- There must be reciprocity, i.e., based on assurances from the US, it can be expected that a similar request from Germany would also be positively satisfied in the US.
In addition to the extradition treaty that Germany has concluded with the United States, there is another extradition treaty between the EU and the United States of America. According to this treaty, EU law does not prevent extradition. Thus, Germany, as an EU member state, can extradite other EU citizens to the United States, since neither the right to free movement under Article 21 of the Treaty on the Functioning of the European Union (TFEU) nor the prohibition of discrimination under Article 18 TFEU prevent this procedure.
Extradition between Germany and India
Germany and India signed a bilateral extradition treaty in 2001, which entered into force in 2004. The treaty serves as a basis for legal cooperation in extraditing suspects and helps both countries combat international crime. According to the treaty, the countries undertake to extradite persons who are accused of crimes that are punishable by imprisonment for at least one year.
Extradition is only possible if the offense committed is a criminal offense in both India and Germany. Persons accused of political crimes are not subject to extradition. If the statute of limitations for the crime has expired, extradition will also be rejected.
Extradition between Germany and the UK
Before the UK left the EU, the extradition process between Germany and the UK was governed by the European Arrest Warrant (EAW), which allowed for the quick and efficient transfer of wanted persons between EU member states.
After Brexit, the Trade and Cooperation Agreement (TCA) between the European Union and the UK came into force in January 2021. One of the parts of this agreement is a section on cooperation in criminal matters, including extradition. This agreement became the basis for new extradition rules between the UK and EU countries, including Germany.
In addition to the TCA, Germany and the UK also continue to follow the provisions of the European Convention on Extradition of 1957, which regulates extradition between member states of the Council of Europe.
Extradition between Germany and South Korea
Germany and South Korea have an extradition treaty that regulates the extradition procedures between the countries. This treaty establishes legal mechanisms for the two countries to cooperate on extradition matters and ensures that the process complies with international standards.
Both countries are parties to various international agreements aimed at combating crime and protecting human rights, such as the UN Convention against Transnational Organized Crime, the 1957 Extradition Convention, and many others.
Contact us for legal advice and professional assistance in extradition matters!
Removing Interpol Red Notices
A Red Notice is not an international arrest warrant, but serves as a basis for the temporary detention of a person.
Reasons for removing a Red Notice:
- Political persecution
- Human rights violation
- Unfair trial
- Risk of death penalty
- No double jeopardy
- Misidentification
- Expiry of the statute of limitations
In Germany, the process of removing a red notice involves several steps and interactions with various legal institutions. First, you need to file a request with the Federal Criminal Office of Germany (Bundeskriminalamt). The BKA is the national central bureau of INTERPOL in Germany. This will provide information about the existence of a red notice and the grounds for its issuance.
Then you need to file a request with the Commission for the Control of INTERPOL’s Files. The CCF is an independent body responsible for reviewing requests for access to information and its correction or deletion. The request must contain:
- Personal data of the applicant;
- Description of the situation and reasons why the notice should be removed;
- Documents and evidence supporting the applicant’s arguments.
If you or your loved ones are faced with the problem of an Interpol red notice, do not delay seeking professional advice. Our company’s competent lawyers are ready to provide the necessary support and guidance at every stage of the process.
Our extradition lawyers in Germany provide a wide range of services aimed at protecting the interests of clients facing extradition requests. We provide legal support at all stages of the process, from reviewing the request to representing interests in court.
If you are under threat of extradition, our lawyers can challenge the request in German courts. We analyze the grounds for the request and identify possible violations of your rights.
Our team provides advice on international law, explaining the legal aspects of extradition and helping clients understand their rights and obligations.
Our lawyers have extensive experience in German courts and successfully defend clients at all stages of the process. Extradition cases often require interaction with law enforcement agencies and other government agencies. Our team negotiates with German government agencies to minimize risks for the client and achieve a positive result.
If a court in Germany has issued an extradition decision, our lawyers will help you file an appeal and continue the fight for your rights.
We represent clients in higher courts, seeking to overturn unlawful decisions. Our specialists will help protect your rights and avoid unfair prosecution.
