Double Criminality in Extradition Proceedings

By Dr. Julius Hagen, Attorney at Law

Different offence names do not prevent extradition

A foreign prosecution for fraud, abuse or a business offence can lead to arrest in Germany even where German law has no offence with precisely the same definition. Double criminality concerns the conduct described in the request. The requirement may be met if that conduct would constitute an unlawful criminal offence when transposed, where necessary, into the German context.

Section 3(1) of Germany’s Act on International Cooperation in Criminal Matters (IRG) provides the general rule. Applicable extradition treaties and the special rules for EU Member States may change the test. Under a European Arrest Warrant, double criminality is not examined for certain listed offences. We therefore establish which rules govern the request before treating a difference between national laws as a bar to extradition.

Criminality alone does not always suffice

For extradition for the purpose of prosecution, section 3(2) IRG generally requires the conduct to carry a maximum sentence of at least one year under German law. For extradition for the purpose of enforcing a sentence, section 3(3) IRG generally requires at least four months of the custodial sanction to remain to be enforced. Applicable treaties and the European Arrest Warrant rules may provide different thresholds.

Transposing the facts does not allow missing allegations to be supplied

The transposition required by section 3(1) IRG allows conduct abroad to be assessed under German law. A foreign place of commission or public institution may need to be considered in an equivalent German setting. The alleged conduct and the requested person’s involvement remain the basis of the assessment. Transposition cannot supply an unalleged deception, intention or injury.

Business allegations illustrate the problem. If failure to repay a loan is prosecuted as fraud, the account must address matters such as the alleged deception, the resulting mistake, the disposal of property and loss, and the intention to obtain an unlawful financial benefit. Breach of contract alone does not establish those elements. Where a transaction involves several countries, their respective connections must also be preserved; every foreign element cannot simply be replaced with a German one.

Gaps in the account of the offence require focused requests for information

The German Higher Regional Court generally does not retry guilt or innocence in extradition proceedings. The facts stated in the request normally form the basis of its assessment. A separate examination of whether sufficient suspicion exists under section 10(2) IRG requires special circumstances. That is distinct from asking whether the account contains enough facts to assess double criminality at all.

Where essential information is missing, supplementary material must be obtained under section 30(1) IRG. We identify the missing legal element and the information needed to assess it, such as a particular payment, the substance of a statement, the timing of an act or the individual’s alleged contribution. A gap that can be remedied does not amount to a final refusal of extradition. Nor can the foreign offence label fill that gap.

A European Arrest Warrant may dispense with the German criminality test

Under section 81 no. 4 IRG, double criminality is not examined where the offence falls within one of the 32 categories in Article 2(2) of the European Arrest Warrant Framework Decision and carries a maximum custodial penalty of at least three years in the issuing state. The categories include fraud, corruption and money laundering. The three-year threshold concerns the statutory maximum, not the sentence expected or imposed.

We compare the category selected in the warrant with the factual account and the stated penalty range. Missing or inconsistent information about that classification may require clarification. If the exception applies, the fact that the conduct is not criminal in Germany is not, by itself, a ground for refusing surrender. Outside the list, the conduct must still be assessed under German law, although identical offence names and legal elements are not required.

Tax and business allegations must identify the relevant duties

A breach of foreign law cannot be matched to a German offence solely by describing it as tax evasion, breach of trust or unlawful business activity. Where double criminality must be examined, we need the relevant provisions and the facts said to establish personal responsibility. If a criminal provision depends on licensing requirements, prohibitions or another regulatory regime, that underlying regime must also be considered. A foreign administrative rule does not automatically become a German criminal prohibition.

Section 81 no. 3 IRG makes special provision for tax, customs and currency matters involving EU Member States. Extradition does not fail merely because Germany has no equivalent tax or corresponding rules. For non-EU states, the applicable treaty arrangements must be examined. Differences between tax systems do not provide general immunity from extradition for fiscal offences.

Several acts may form a single offence for extradition purposes

Where a conviction covers several acts, it is necessary to distinguish separate offences from conduct forming a single offence. That distinction affects whether extradition may be limited. Establishing that some acts would not be criminal in Germany does not settle the issue.

The CJEU held that a European Arrest Warrant issued to enforce a sentence for a single offence comprising several acts cannot be refused solely because only some of those acts are criminal in the executing state (judgment of 14 July 2022, C-168/21). Here too, the foreign and domestic offences need not have identical constituent elements. In an earlier case involving a Polish continuing offence of abuse of family members, the Bremen Higher Regional Court treated specific acts of bodily harm as sufficient because they materially contributed to that continuing offence, even though German law had no identical offence (decision of 26 February 2015, 1 Ausl A 1/15). The defence must examine the judgment, the periods concerned, the individual acts and how the sentence relates to them.