How Do Extradition Proceedings Work in Germany?

By Dr Julius Hagen, Attorney at law (Germany)

How extradition proceedings actually work in Germany

Extradition proceedings do not always begin with a formal request. The first event may be an international alert or a provisional arrest. Detention, receipt and review of the foreign documents, an admissibility decision by a Higher Regional Court, an executive approval decision and surrender may then follow. The precise route depends on the requesting state, the applicable treaty or EU instrument, and the procedural stage reached in the individual case.

The process is therefore not a rigid flowchart. Steps may be omitted, run in parallel or be revisited. One distinction is essential: the court determines whether extradition is legally admissible, while the competent executive authority decides whether it is approved. European Arrest Warrant cases are also subject to special rules and target time limits.

Judicial admissibility and executive approval: two distinct stages

In formal proceedings, the Higher Regional Court decides whether extradition is legally admissible. The public prosecution office attached to that court normally prepares the matter. This is separate from approval by the competent executive authority. Surrender can take place only when the requirements at both levels have been met.

Responsibility for executive approval follows statutory rules and delegations, so the same authority does not decide every case. Nor is the sequence identical in all proceedings. In a European Arrest Warrant case, the approval authority must state before the admissibility decision whether it intends to rely on certain discretionary grounds for refusal.

1. Alert, arrest and appearance before a judge

The starting point may be a formal extradition request, a foreign arrest warrant or an international alert. Depending on the legal basis, the alert may surface through German police systems, INTERPOL or—particularly for a European Arrest Warrant—the Schengen Information System. An alert does not in every case replace the later examination of the full extradition papers.

Where the statutory conditions are met, the public prosecution office and police may provisionally arrest the requested person under Section 19 IRG. A person arrested on an extradition detention warrant or provisionally arrested must be brought before a Local Court judge without delay, normally no later than the following day (Section 21 IRG and Section 22 IRG). The judge addresses identity, the reason for arrest, the applicable rights and initial procedural declarations.

This first appearance does not determine the extradition request. It can nevertheless shape the rest of the case. Statements concerning simplified extradition, specialty or the foreign allegation should not be made under time pressure without understanding their consequences.

2. Provisional extradition detention or extradition detention

Before the complete extradition request arrives, the Higher Regional Court may order provisional extradition detention under the conditions set by Section 15 IRG and Section 16 IRG. Once the request has arrived, extradition detention under Section 15 IRG may be considered. Both forms require a written detention warrant issued by the Higher Regional Court (Section 17 IRG).

Detention is not mandatory in every extradition case. It requires a statutory ground and a proportionate decision; if extradition appears inadmissible from the outset, Section 15(2) IRG precludes extradition detention. Execution of the warrant may be suspended subject to suitable conditions under Section 25 IRG. Where detention continues, the Higher Regional Court must review it at two-month intervals under Section 26 IRG.

Provisional detention is also subject to time limits for receipt of the request and supporting papers. The IRG generally provides for two months, or three months for requests by non-European states; an applicable treaty may set a shorter period. The legal instrument governing the particular case must therefore be identified first.

3. Receipt of the extradition papers and examination

Once the request arrives, the authorities examine whether the required papers are present and sufficient for an admissibility decision. If they are incomplete, the Higher Regional Court may request supplementary information and set a deadline under Section 30 IRG.

The requested person is examined in relation to the request under Section 28 IRG. This is not a full trial of the foreign allegation. German courts do not normally retry guilt or innocence. The underlying suspicion is examined only within the narrow statutory exceptions.

Objections should be supported with evidence at this stage. Depending on the case, relevant issues may include identity, dual criminality, specialty, trial in absentia, political persecution, detention conditions, health risks or a threatened breach of fundamental procedural rights. Those issues require a separate, case-specific assessment of barriers to extradition.

4. Simplified or formal extradition

Under Section 41 IRG, simplified extradition permits surrender without completing the full formal admissibility procedure. It requires informed consent given on the record before a judge. That consent cannot be withdrawn. A separate waiver of the specialty protection may also be given.

If the requested person does not consent to simplified extradition, the public prosecution office applies to the Higher Regional Court for an admissibility decision under Section 29 IRG. In certain cases it may seek that decision despite consent.

5. The Higher Regional Court's decision

The Higher Regional Court examines the legal requirements and any objections raised in time. It may seek additional papers, examine the requested person and take evidence relevant to admissibility. An oral hearing is possible but is not required in every case (Section 30 IRG and Section 31 IRG).

The court gives a reasoned decision, which is notified to the public prosecution office, the requested person and counsel under Section 32 IRG. A reference to the Federal Court of Justice under Section 42 IRG is not an ordinary appeal available at the requested person's election. It is used to resolve questions of fundamental importance or conflicts in case law.

6. Executive approval and surrender

If the court declares extradition admissible, the competent executive authority then gives or finalises its approval decision. Discretionary grounds for refusal and other international-cooperation considerations may arise at this level. The identity of the competent authority and the scope of its discretion depend on the governing instrument and the applicable delegation of powers.

Following approval, the public prosecution office attached to the Higher Regional Court normally arranges execution. The surrender date, transport, postponement because of German proceedings, or temporary surrender may affect the final stage. If the person is at liberty, detention to secure the surrender may be ordered under the conditions of Section 34 IRG.

How a European Arrest Warrant changes the process

A European Arrest Warrant is a specific surrender mechanism between EU Member States. The general provisions of the IRG apply only where Part Eight does not contain a more specific rule. The case still moves through arrest, detention review, judicial admissibility, approval and surrender, but the system is built around mutual recognition and accelerated decision-making.

Before the court rules on admissibility, the approval authority must state under Section 79(2) IRG whether it intends to rely on discretionary grounds under Section 83b IRG. Section 83c IRG provides that the extradition decision should normally be made within 60 days of arrest. If the requested person consents to simplified extradition, the decision should normally be made within ten days of consent. These are target time limits; complex requests for information or exceptional circumstances may extend the process.

The first defence question is therefore whether the case is in fact based on a European Arrest Warrant or on a conventional extradition request. The available objections, time limits and consequences of consent are not identical.