Global Investigations Review - The law and practice of international investigations

Extradition

Last verified on Thursday 7th May 2020

Germany

Anna Oehmichen
Knierim & Kollegen Rechtsanwälte
  1. 1.

    Are extradition proceedings regulated by domestic legislation, treaties or both?

  2. Extradition proceedings are regulated by bilateral treaties, multilateral treaties and also domestic legislation, namely the Act on International Cooperation in Criminal Matters (AICCM IRG), online available at https://www.gesetze-im-internet.de/irg/. An official English translation can be accessed at https://www.gesetze-im-internet.de/englisch_irg/index.html.

  3. 2.

    Is there a central register of extradition treaties that your state has entered into?

  4. No, there is no such register in Germany. However, there are not legally binding administrative guidelines, the Practice Directives for the Mutual Legal Assistance in Criminal Matters (PDMLA RiVASt), which contain an Annex II ‘Country Part’, which provides for each country a document that has been created by the German Ministry of Justice and Consumer Protection to give an overview of the MLA instruments applicable in Germany with regards to the respective country.

  5. 3.

    Do special extradition arrangements apply to certain foreign states, for example states that are geographically proximate, or politically, legally or economically closely linked?

  6. There are specific EU instruments that regulate extradition and MLA within the European Union, such as the European Arrest Warrant (EAW). These rules have been implemented into German law in Part 8 of the AICCM.

  7. 4.

    Is extradition possible to states that have no bilateral or multilateral extradition treaty with your state if they are party to an international convention?

  8. Depending on the country, extradition may also be possible in absence of any treaty, by diplomatic channels. However, this really varies from country to country. For example, in the case of United Arab Emirates, extradition may still be possible, but, on the other hand, in other countries without an extradition treaty (eg, Macau), no extradition takes place.

  9. 5.

    Is extradition possible to states that are not extradition treaty partners as an ad hoc arrangement?

  10. Yes, depending on the country (see question 4).

  11. 6.

    For which offences is extradition from your state allowed?

  12. Except for EAW cases, there is no specific list of extraditable offences in Germany.

    In general (ie, outside the EU), extradition is only allowed for an offence that also qualifies as a criminal offence under German law or if in corresponding circumstances equivalent conduct would constitute an offence under German law (double criminality, section 3, AICCM). Further, there is a proportionality threshold:

    • for accusation extradition requests, the offence must be punishable by a maximum punishment of at least one year under German law or would be punishable by at least one year if in corresponding circumstances equivalent conduct would be criminal under German law.
    • for conviction extradition requests, the sentence that needs to be served must amount to at least four months.

    Moreover, extradition is not allowed for political offences or for political persecution (section 6, AICCM). It is not allowed for exclusively military offences (section 7, AICCM) or for offences that can be punished by the death penalty in the requesting state, unless the requesting state conrims that death penalty will not be applied (section 8, AICCM). Further, the principles of reciprocity (section5, AICCM) and specialty (section 11, AICCM) must be observed.

    With regard to EAW cases, special rules apply: double criminality is not required if the offence for which extradition is sought is punishable with a maximum punishment of at least three years of imprisonment in the Requesting State, and qualifies as one of the offences listed in article 2(2) of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European Arrest Warrant and Surrender Procedures between member states as amended by Framework Decision 2009/299/JHA (EAW FWD) (section 81(4) of the AICCM). Within the application of the EAW, reciprocity, specialty and the political offence exception do not need to be assessed as the member states to the EAW concurred to observe these principles.

  13. 7.

    Is there a requirement for double (dual) criminality? How is this assessed?

  14. Double criminality is generally required, unless extradition is sought based on an EAW for an offence in the 32 categories of offences set out in article 2(2) of the EAW FWD. This question is assessed based on the facts as reported by the Requesting Authority. While there is no assessment of evidence, the facts need to be assessed with a plausibility check. If they are contradictory or illogical, for instance, extradition may be refused, or further information requested to clarify the open questions.

  15. 8.

    How would your state deal with a request that includes an offence for which extraterritorial jurisdiction is claimed?

  16. There is no special provision relating to extraterritorial jurisdiction offences. It would thus depend on the type of offence, eg, on whether the requirement of double criminality would be satisfied. If for such offence, German criminal law would also allow extraterritorial application (eg, illegal drug trafficking, cf. section 6(5) of the German Criminal Code), the offence could be extraditable.

    However, if the offence falls under German jurisdiction (eg, because the offender or the victim is of German nationality or because the offence or parts of it were committed on German territory, as in section 3ff of the German Criminal Code), extradition is not admissible if a German court or authority has passed a judgment against the requested person, has rejected to open trial or has rejected the indictment or has dispensed with the preferment of public charges and concurrently imposed conditions (section 153a of the German Code of Criminal Procedure) or has closed the case under juvenile criminal law (section 9(1), AICCM). It is further inadmissible if prosecution or execution of sentence would be statute barred under German law or would be excluded based on an amnesty law under German law, section 9(2), AICCM.

  17. 9.

    What must be included as part of a valid extradition request made by the foreign state?

  18. It depends whether the request comes from a state that participates in the EAW system or not. For third countries requests, unless regulated otherwise by bilateral or multilateral treaty, (only) the documents listed in section 10, AICCM, need to be submitted, that is, inter alia:

    • an arrest warrant, a certificate with an equivalent legal effect or an enforceable decision ordering deprivation of liberty by the competent authority of the Requesting State;
    • a description of the applicable legal provisions; and,
    • if, based on special circumstances, it is questionable whether the Requested Person is sufficiently suspicious of having committed the alleged offence, a description of facts that explain the sufficient suspicion are needed.

    In EAW cases, either the documents listed in section 10, AICCM, or an EAW form must be submitted which contains the data listed in section 83a, AICCM.

    Unless the Requesting State is released from translating the extradition documents based on an international treaty, the request should be accompanied by a translation, and the Requested German Authority would then request these (No. 14 of the PDMLA). There is no requirement to submit any evidence, nor does the translation need to be legalised.

  19. 10.

    What are the stages of the extradition process?

  20. The German extradition procedure foresees two key procedures: the act of granting the extradition, which is a political decision, and the decision on the admissibility of the extradition, which is a judicial decision.

    In the case of an incoming extradition request, the authority competent to grant extradition (Bewilligungsbehörde, the ‘granting authority’) will first make a preliminary assessment on whether it will grant extradition or not. If it decides not to grant extradition, it will reject the request. If it decides that extradition might be granted, it passes on the request to the competent court to rule on the admissibility of the request. If the court decides that the request is inadmissible, the request must be rejected. If it decides that it is admissible, the request goes back to the granting authority, which will now decide on whether to grant extradition or not (for details, see Schomburg/Lagodny, Internationale Rechtshilfe in Strafsachen, 6th edition, 2020, Einleitung, Rn. 29 ff).

  21. 11.

    If an initial political decision is required, what factors can be considered?

  22. The procedure of granting is not further regulated by law, the factors to be considered are pure political ones, and often governed by external relations (Schomburg / Lagodny, Internationale Rechtshilfe in Strafsachen, 6. Auflage 2020, Einleitung, Rn. 32). For the preliminary assessment on granting the decision, the granting authority will therefore mainly consider whether there are evident reasons why the extradition would be inadmissible.

    However, in the case of the EAW, the political discretion to grant or not to grant extradition was significantly reduced. Section 79, AICCM, provides that granting can only be denied insofar as the law provides for reasons to refuse the granting. These reasons are mostly those that the Framework Decision on the EAW calls “optional grounds for refusal”. They are exhaustively enlisted in section 83b of the AICCM, and include, inter alia:

    • pending or finally decided proceedings in Germany for the same offence (ne bis in idem);
    • lack of reciprocity (very unlikely in EAW cases); and
    • specific grounds for foreign citizens normally living in Germany.  
  23. 12.

    Is provisional arrest, before the extradition request is received, possible?

  24. Yes, this is regulated in section 16, read in conjunction with section 15, AICCM. Arrest can thus be ordered:

    • if there is a danger that the Requested Person may avoid the extradition proceedings or the execution of the extradition; or
    • if based on ascertainable facts there is strong reason to believe that the Requested Person would obstruct the investigation of the truth in the foreign proceedings or in the extradition proceedings, and if:
    • a competent authority of the requesting state so requests; or
    • if there is a strong reason to believe that a foreigner, based on ascertainable facts, may have committed an offence that could lead to his or her extradition; and
    • if extradition is not evidently inadmissible.
  25. 13.

    Must a domestic arrest warrant be issued or can an Interpol red notice be used to carry out a provisional arrest?

  26. An Interpol red notice suffices for a provisional arrest if the other conditions as set out in the answer to question 12 are met. Subsequently, the Requested Authority (the general prosecutor of the region) will then request the Requesting State to submit the extradition documents as required by section 10, AICCM, and set a deadline to deliver these documents. Should this deadline not be met, the Requested Person will usually be released.

  27. 14.

    What is required to apply for a domestic extradition arrest warrant?

  28. See answer to question 12.

  29. 15.

    What rights does the requested person have while under arrest?

  30. The arrested person must be brought before an investigatory judge (that is, at the lowest court level available in Germany, the local district court) at the latest, the day after the arrest. The requested person shall then be informed of his right to appoint a lawyer of his choice, and that he is free to give a statement, but also allowed to remain silent. The person is to be informed of the possibility of the simplified extradition procedure, but also of the fact that such a decision will not be revocable. He or she will also be asked whether he wants to waive the principle of specialty.

    The person should also be entitled to a state-appointed lawyer, irrespective of his financial means, because of his detention situation. But this is, unfortunately, not yet practised by all German courts (cf. Schomburg/Lagodny, Internationale Rechtshilfe in Strafsachen, 6th edition, 2020, IRG § 16 Rn. 55).

  31. 16.

    Is bail available in extradition proceedings?

  32. In theory, yes. Pursuant to section 25, the Higher Regional Court may stay the execution of the extradition arrest warrant if less intrusive measures will ensure that the purpose of the provisional extradition detention or of the extradition detention is served. However, unfortunately, this provision is rarely applied in practice (one famous case being the one of the Catalan leader Puigdemont, Higher Regional Court of Schleswig, decision of 5 April 2018 – 1 Ausl (A) 18/18).

  33. 17.

    If so, what are the factors that a court will take into account in deciding whether to grant bail?

  34. The most common reason for extradition detention is flight risk. To assess whether such risk exists, all circumstances of the case need to be taken into account. Social relations, an employment or a long-term stay in Germany may speak against a flight risk (as OLG Hamm StV 2001, 526 [527]).

    Other factors may be that the requested person has family in Germany, or that he or she has cooperated with the justice authorities (eg, by confessing). The Federal Constitutional Court has ruled that the fact that a person is a foreigner, in itself, may not justify to assume a flight risk, and, similarly, that the gravity of the offence and the accordingly high sentence expectation, as such, also does not suffice to presume a flight risk. However, in practice, these two are the most common reasons used by German courts to justify extradition (as well as pretrial) detention.

  35. 18.

    Can the court impose conditions when granting bail? What conditions can be, and usually are, imposed?

  36. Section 25, AICCM, which allows for the suspension of the extradition arrest warrant under certain conditions, refers to the relevant provisions of the German Code of Criminal Procedure (CCP, StPO). Pursuant to section 116(1), CCP, the following measures, in particular, may be considered:

    • the direction to report at certain times to the judge, the prosecuting authority or to a specific office to be designated by them;
    • the direction not to leave one’s place of residence or stay or a certain area without the permission of the judge or the prosecuting authority;
    • the direction not to leave one’s private premises except under the supervision of a designated person; and
    • the provision of security by the accused or another person.

    Other potential conditions may be to turn in one’s passport and identity documents. Less frequently imposed is the condition to turn in one’s driver’s licence or to freeze accounts. In principle, also admissible would be the use of an electronic tag to monitor curfew hours; however, whether this could be used in practice would depend on the availability of technical devices required to facilitate the monitoring (MüKoStPO/Böhm, 1. Aufl. 2014, StPO § 116 Rn. 30, with further references).

  37. 19.

      What bars can be raised to resist extradition?

  38.  

     

     

    Third countries (unless otherwise provided by treaty)

    EAW

    Mandatory bars to extradition

     

     

    Formal requirements

    Extradition documents, inter alia, arrest warrant or judgment

    EAW or extradition documents,

    Double criminality

    3 AICCM

    Only for non-listed offences

    Minimum sanction

    For accusation warrants: at least one year maximum punishment, for conviction warrants: at least four months

    Political offence?

    Yes, 6(1), AICCM

    Yes

    Persecution for political motives?

    Yes, 6(2), AICCM

    Not applicable, 82 AICCM

    Ne bis in idem

    If a German court or authority has passed a judgment against the requested person, has rejected to open trial or has rejected the indictment or has dispensed with the preferment of public charges and concurrently imposed conditions (section 9 AICCM)

    If a German court or authority has passed a judgment against the requested person, has rejected to open trial or has rejected the indictment or has dispensed with the preferment of public charges and concurrently imposed conditions (section 9 AICCM), and, additionally, if the requested person has already been finally tried in another member state for the offence on which the request is based and that in the case of a conviction the sentence has been enforced, is currently being enforced or can no longer be enforced under the law of the convicting state

    Passage of time

    If prosecution or execution of the sentence is statute-barred under German law

    Material test of suspicion

    Only in exceptional cases, when there is particular cause that raises doubts regarding the suspicion (section 10(2), AICCM)

    Death penalty

    If the requested person may receive the death penalty, extradition is not applicable, section 8 AICCM

    n/a

    Life-long sentence without possibility of early release

    Only in case of ordre public

    section 83(1), no. 4, AICCM

    Military disciplinary sanctions

    Extradition is not admitted for purely military sanctions, section 7 AICCM

    n/a

    Rule of specialty

    section 11, AICCM

    n/a

    Ordre public

    German general principles of law, eg, human rights such as fair trial, human dignity

    European general principles of law => article 6 TEU, FRCh, ECHR, principle of proportionality

    Incapability of contracting guilt

    n/a

    83(1)(2), AICCM

    In absentia judgments

    Only in the case of ordre public

    section 83 paragraph 1 No. 3, paragraphs 2-4, AICCM

    No extradition of nationals

    Article 16(2) of the German Constitution, 2(3) AICCM

    Accusation warrants: Germans can be extradited, but only to EU member states and only under the condition that after their conviction, they will be transferred back to Germany to serve the sentence here.

    Conviction warrants: German citizens can only be extradited if they consent (section 80, AICCM)

    Optional bars to extradition

    Not regulated by law

    See question 11. All optional bars to extradition are enlisted in section 83b, AICCM.

     

  39. 20.

    Does your state extradite its own nationals and residents?

  40. In general, the German Constitution prohibits extradition of German nationals, article 16. However, when Germany implemented the Rome Statute of the International Criminal Court and the EAW FWD, article 16 was amended, allowing for the extradition to EU member states or to an International Court, as long as the principles of the rule of law are being observed.

    As article 16 does not refer to EAWs, but explicitly to ‘EU Member States’, the German legislator passed a law (the Brexit Transition Act of 27 March 2019) clarifying that during the transition period set out in Part IV of the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community (Brexit Agreement), the United Kingdom of Great Britain and Northern Ireland are still deemed as member states. This notwithstanding, Germany has made a notification under article 185 of the Brexit Agreement so that Germany can now refuse extradition of nationals to the UK (see Declaration of 31 January 2020, Official Journal of the European Union, L 29/188).

  41. 21.

    Are potential breaches of human rights after extradition considered in the extradition process?

  42. Yes. Typical breaches of human rights to be considered are inhumane prison conditions or torture (article 3 ECHR, article 4 FRCh, article 1 German Constitution: human dignity), fair trial (article 6 ECHR, article 47 FRCh), or right to family life (article 8 ECHR).

  43. 22.

     Can a person consent to extradition, and what is the procedure? Is consent irrevocable?

  44. A person can consent to extradition pursuant to section 41, AICCM, which leads to a simplified extradition procedure. The consent is irrevocable.

  45. 23.

    Is there a speciality protection? How is it provided? Does it apply if a person consents to extradition?

  46. Unless provided otherwise in treaty law, the rule of specialty is regulated in section 11 of the AICCM. Under this provision, extradition shall not be granted unless the following conditions are met:

    • that the person sought will neither be punished in the requesting state without Germany’s consent for any reason that arose prior to his transfer with the exception of that offence for which extradition had been granted, nor be restricted in his or her personal freedom or be prosecuted through measures which could not also be taken in his or her absence;
    • that the person sought will not be delivered, transferred or deported to a third state without Germany’s consent; and
    • that the person sought may leave the requesting state after the final conclusion of the proceedings for which extradition had been granted.

    Under certain circumstances, the specialty rule will not apply (eg, if the requested person has not left the state within one month of the conclusion of the extradition proceedings, although he or she was entitled to do so and had the opportunity to do so as well).

    If a person consents to the simplified extradition procedure, he or she will also be asked whether he or she wants to waive the right to specialty.

  47. 24.

    If there is a political decision at the end of the extradition process, what factors can be considered?

  48. The final decision on granting the extradition has, in principle, only one requirement, and that is that a court has found the extradition admissible. If this requirement is fulfilled, the government has discretionary power to decide whether to grant extradition or not – unless it has obligations under international treaty law (eg, the Framework Decision on the European Arrest Warrant).

    In the case of the EAW, the political discretion to grant or not to grant extradition was significantly reduced. Section 79, AICCM, provides that granting can only be denied insofar as the law provides for reasons to refuse the granting. These reasons are mostly those that the Framework Decision on the EAW calls “optional grounds for refusal”. They are exhaustively enlisted in section 83b of the AICCM, and include, inter alia:

    • pending or finally decided proceedings in Germany for the same offence (ne bis in idem)
    • lack of reciprocity (very unlikely in EAW cases); or
    • specific grounds for foreign citizens normally living in Germany.  
  49. 25.

    What ability is there to appeal against or judicially challenge decisions made during the extradition process? What are the requirements for any appeal or challenge?

  50. Against the admissibility decision, no formal remedy can be raised, but, in case new facts are submitted, a second decision on the admissibility can be requested (section 33, AICCM). In consequence, the only remedy is the extraordinary one of a constitutional complaint, which usually needs to be combined with a request for interim relief.

    Against the decision to grant extradition, only in EAW cases, this decision can be subject to a judicial review (section 79(2), AICCM). In all other cases, there is no further remedy available.

    It is currently discussed to amend the law to introduce remedies, not least because this has been required by the CJEU in the decision of 27 May 2019 (C-508/18 and C-82/19 PPU).

  51. 26.

    What are the time limits for the extradition process? How long does each phase of the extradition process take in practice?

  52. During the first preliminary examination of granting extradition, usually further information must be requested from the Requesting State. In such cases, the granting authority may set a deadline at their own discretion. Some set a deadline of one week, others take the deadline of three months (maximum time limit for extradition detention) or 40 days (maximum time limited for extradition detention under the European Convention on Extradition of 1957). It is therefore recommendable for the defence to request a tight deadline for the submission of additional information.

    Once the granting authority has decided to pass on the case to the court, the court may take one to two weeks to decide on the admissibility. In the case of extradition detention (which is the norm), every three months, the court needs to also reconfirm that the conditions to order extradition detention are still met.

    In EAW cases, the final decision to grant extradition shall, in total, not exceed 60 days. If the requested person consents to the simplified extradition procedure, the decision on extradition should be taken within 10 days.

  53. 27.

    In what circumstances may parallel proceedings delay extradition?

  54. Section 83c of the AICCM stipulates that the arrangement of a date for transfer may be delayed on account of a prosecution or enforcement proceedings pending against the person sought in Germany or for serious humanitarian reasons. It should be noted that the fact that asylum has been granted does not constitute an automatic bar to extradition. Rather, the court has to make an independent assessment as to whether political persecution (section 6(2) of the AICCM, see also article 3(2) European Convention on Extradition) exists. However, if an administrative authority has already granted asylum, this will have indicative value.

  55. 28.

    What provision is made for legal representation of the requesting state or the requested person?

  56. The requested person may, at any time during the proceedings, have the assistance of counsel (section 40(1), AICCM). If the requested person does not already have privately appointed counsel, counsel shall be assigned to him or her, but, according to the letter of the law, only if due to the factual or legal complexity of the case assistance appears appropriate, if it is apparent that the requested person cannot himself adequately protect his or her rights or if the requested person is under age.

    The Higher Regional Courts apply this provision not consistently. Some courts always appoint a counsel, others hardly ever do so.

    Within the system of the EAW, the new section 83c(2) of the AICCM is important: it was introduced to implement the Legal Aid Directive, and foresees that the requested person has to be informed immediately of his or her right to name a legal representative (also) in the requesting state.

    The requesting state is not specifically represented in the German extradition proceedings, as the German extradition procedure is a written procedure. The requesting state will thus be represented by whichever authority of that state has sent the request.

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Questions

  1. 1.

    Are extradition proceedings regulated by domestic legislation, treaties or both?


  2. 2.

    Is there a central register of extradition treaties that your state has entered into?


  3. 3.

    Do special extradition arrangements apply to certain foreign states, for example states that are geographically proximate, or politically, legally or economically closely linked?


  4. 4.

    Is extradition possible to states that have no bilateral or multilateral extradition treaty with your state if they are party to an international convention?


  5. 5.

    Is extradition possible to states that are not extradition treaty partners as an ad hoc arrangement?


  6. 6.

    For which offences is extradition from your state allowed?


  7. 7.

    Is there a requirement for double (dual) criminality? How is this assessed?


  8. 8.

    How would your state deal with a request that includes an offence for which extraterritorial jurisdiction is claimed?


  9. 9.

    What must be included as part of a valid extradition request made by the foreign state?


  10. 10.

    What are the stages of the extradition process?


  11. 11.

    If an initial political decision is required, what factors can be considered?


  12. 12.

    Is provisional arrest, before the extradition request is received, possible?


  13. 13.

    Must a domestic arrest warrant be issued or can an Interpol red notice be used to carry out a provisional arrest?


  14. 14.

    What is required to apply for a domestic extradition arrest warrant?


  15. 15.

    What rights does the requested person have while under arrest?


  16. 16.

    Is bail available in extradition proceedings?


  17. 17.

    If so, what are the factors that a court will take into account in deciding whether to grant bail?


  18. 18.

    Can the court impose conditions when granting bail? What conditions can be, and usually are, imposed?


  19. 19.

      What bars can be raised to resist extradition?


  20. 20.

    Does your state extradite its own nationals and residents?


  21. 21.

    Are potential breaches of human rights after extradition considered in the extradition process?


  22. 22.

     Can a person consent to extradition, and what is the procedure? Is consent irrevocable?


  23. 23.

    Is there a speciality protection? How is it provided? Does it apply if a person consents to extradition?


  24. 24.

    If there is a political decision at the end of the extradition process, what factors can be considered?


  25. 25.

    What ability is there to appeal against or judicially challenge decisions made during the extradition process? What are the requirements for any appeal or challenge?


  26. 26.

    What are the time limits for the extradition process? How long does each phase of the extradition process take in practice?


  27. 27.

    In what circumstances may parallel proceedings delay extradition?


  28. 28.

    What provision is made for legal representation of the requesting state or the requested person?