Key Legal Obstacles to Extradition

If the alleged conduct is not punishable under German law, extradition is impermissible.

Extradition generally requires so-called dual criminality: pursuant to Section 3 (1) IRG, extradition is only permissible if the act also constitutes an unlawful offense under German law that fulfills the elements of a criminal statute, or if, upon corresponding adjustment of the facts, it would constitute such an offense under German law.

If the act that is the subject of the foreign criminal proceedings is not punishable under German law, extradition is impermissible. This requires a sufficiently specific description of the alleged offense in the arrest warrant. One commonly cited example is “adultery,” which is not punishable under German law but remains a criminal offense in some Arab jurisdictions.

Germany does not extradite individuals who face political persecution.

Extradition must not take place if the person concerned would be persecuted because of political convictions, religious affiliation, or as a dissident. We examine all available protective rights, asylum, or international human rights provisions to prevent an impermissible extradition.

An application for asylum does not in itself constitute an obstacle to extradition. However, the reasons that justify the granting of asylum may also preclude extradition. Pursuant to Section 6 (2) IRG, extradition is impermissible if there are serious grounds for assuming that, in the event of extradition, the person concerned would be persecuted or punished because of race, religion, nationality, membership of a particular social group, or political opinion.

If you face proceedings abroad that violate rule-of-law principles, Germany may not extradite you.

Extradition is impermissible if there are serious indications that the person concerned would not receive a fair court trial in the requesting state. This includes, in particular, proceedings lacking judicial independence, restricted defense rights, or a structurally unfair trial.

German courts must examine whether the minimum guarantees of Article 6 ECHR are observed. If there are justified doubts, extradition must not take place.

Detention conditions that violate human rights can preclude extradition.

A central defense approach is examining whether extradition entails a risk of degrading or inhuman treatment within the meaning of the European Convention on Human Rights (Article 3 ECHR).

Although the Higher Regional Courts must investigate detention conditions themselves, it is often necessary to substantiate the risk of human rights violations in detention with detailed and reliable reports from international monitoring bodies such as the European Committee for the Prevention of Torture (CPT). If necessary, we also obtain expert opinions from recognized monitoring bodies or internationally renowned specialists from our network.

We succeeded in this, for example, in a case before the Hamm Higher Regional Court in which we were able to demonstrate human rights violations in Belgian prisons (Hamm Higher Regional Court, decision of 27 June 2023, file no. III-2 OAusl 38/23).

Germany does not extradite individuals who face the death penalty.

Extradition is also prohibited if the individual concerned faces the death penalty or an intolerably severe punishment. Using this argument, we were able to prevent the extradition of a client to the United States, where he faced a cumulative prison sentence of several hundred years (Celle Higher Regional Court, decision of 08 December 2023, file no. 2 OAus 74/23).

However, exceptions also exist here. Pursuant to Section 8 IRG, extradition for crimes punishable by the death penalty may be permissible if the requesting state assures that the death penalty will not be imposed or enforced.

Without a guaranteed right to a new trial, extradition is impermissible.

If the person was convicted in absentia in the requesting state, particular caution is required. Extradition based on a judgment rendered in absentia from an EU Member State is generally impermissible pursuant to Section 83 (1) no. 3 IRG.

Exceptions apply if the judgment was served, a defense counsel was appointed, or the right to a new trial exists. Mere service fictions are often insufficient; see Section 83 (3) IRG.

You may only be prosecuted for exactly those allegations for which you are extradited. New or additional charges are impermissible.

The principle of specialty set out in Section 11 IRG provides that the person concerned may only be prosecuted for the offenses for which extradition was expressly approved. We have observed cases in which the indictment went beyond the offenses for which a client was internationally sought for arrest.

In our experience, the principle of specialty is particularly significant in complex white-collar crime or foreign trade criminal law cases. In practice, the United States often has difficulty providing sufficiently concrete assurances of compliance with the principle of specialty.

No one may be extradited if they could be prosecuted or punished twice for the same act.

The prohibition of double jeopardy constitutes a fundamental bar to extradition. This principle of international law prohibits renewed prosecution or extradition if a final judgment or a final discontinuation has already been issued in another state for the same act. Extradition is impermissible if the requested person has already been convicted for the same incident.

German citizens enjoy special protection. However, extradition to EU Member States is possible.

Pursuant to Article 16 (1) sentence 1 of the German Basic Law, no German may be extradited to a foreign country. However, this rule has an important exception in European Arrest Warrant proceedings. The strict requirements for extraditing German nationals to other EU Member States are regulated in Section 80 IRG.

Serious illnesses or acute risk of suicide can render extradition impermissible.

Extradition may be impermissible if the person concerned is unfit for extradition due to serious physical or psychological illnesses. This applies in particular if extradition would involve a concrete risk to life or health.

An acute risk of suicide may also constitute an obstacle to extradition according to the case law of the Higher Regional Courts. If there are serious indications that the health condition would deteriorate significantly due to detention or transfer, German courts must take this into account.

For example, the Düsseldorf Higher Regional Court recognized this in the case of our client suffering from severe depression (Düsseldorf Higher Regional Court, decision of 21 December 2023, file no. III-3 OAus 234/23).

Decisive in each case is a well-founded medical assessment. Please note, however, that the Higher Regional Courts examine very carefully, based on medical reports, whether a genuine risk of suicide exists or whether the person concerned is merely feigning suicidal intent to prevent extradition.

Without reliable assurances, extradition is impermissible. Promises by the requesting state must be concrete and verifiable.

Communications and assurances from the requesting state are often at the center of the proceedings. The permissibility of extradition frequently depends on diplomatic guarantees from the requesting state. If, for example, it cannot be assured within a deadline set by the Higher Regional Court that detention conditions meet European standards, extradition will be denied.

For the defense, it is of decisive importance to identify the right questions that must be communicated to the requesting state.

Missed deadlines or incomplete documents can stop an extradition.

Extradition proceedings are subject to strict deadlines and formal requirements. For the defense, precise knowledge of international extradition treaties is crucial. Failures or errors by the requesting state can delay or prevent extradition. However, the Higher Regional Courts often grant requesting states the opportunity to remedy deficiencies and supplement information.

German courts may exceptionally examine whether the underlying accusation is viable.

In extradition proceedings, the suspicion against the requested person is not reviewed pursuant to Section 10 (2) IRG. In very narrowly defined cases, however, an exceptional review of sufficient suspicion is required in Germany. This is the case, for example, if the extradition proceedings are conducted abusively or if mistaken identity is possible.

In certain cases, review of suspicion by German courts can even be compelled. For example, in one case before the Hamm Higher Regional Court, we were able to prove that Ukrainian police officers and prosecutors threatened our client via voice messages and demanded high bribes (Hamm Higher Regional Court, file no. III-2 OAus 238/24).

Purely military offenses generally do not justify extradition.

As a rule, extradition is impermissible if the accusation concerns exclusively a breach of military duties. This includes, in particular, offenses such as desertion, refusal to obey orders, or violations of military service regulations, provided they are not also punishable under general criminal law.

Germany generally does not extradite for purely military offenses. In practice, however, it must be carefully examined whether the requesting state merely formally characterizes the accusation as a general criminal offense to enable extradition.