Extradition Detention in Germany

By Dr. Julius Hagen, Attorney at Law

Extradition detention secures the proceedings; it does not decide surrender

Extradition detention is not ordinary pre-trial detention for a German criminal allegation. Its purpose is to ensure that the extradition proceedings can be conducted and that a later surrender decision can be executed. The German court does not determine guilt or innocence in the requesting state.

An arrest therefore does not mean that extradition has already been approved. The Higher Regional Court must examine whether a statutory ground for detention exists, whether detention is proportionate, whether less intrusive measures are sufficient and whether extradition already appears inadmissible from the outset.

When extradition detention may be ordered

Once the extradition request has arrived, the Higher Regional Court may order extradition detention under section 15 IRG. Before the complete request arrives, provisional extradition detention may be available under the additional conditions in section 16 IRG. Under section 17 IRG, either form requires a written extradition detention order issued by the Higher Regional Court. The order must state the ground for detention and the facts on which it is based.

• Risk of absconding: The most common ground requires an individual assessment. Relevant circumstances include the person’s actual centre of life, family and employment ties, a verifiable place of residence, previous conduct and whether reliable conditions can address the perceived risk. Foreign nationality or the extradition allegation alone is insufficient.
• Risk of obstruction: This requires specific facts supporting a strong suspicion that the requested person will hinder the establishment of the truth in the foreign criminal case or the German extradition proceedings. An abstract concern is insufficient.
• Extradition that appears inadmissible from the outset: If extradition already appears inadmissible, extradition detention may not be ordered. Legal obstacles to extradition may therefore be relevant at the detention stage, but their factual basis should be presented as specifically and evidentially as possible.

What happens after an extradition detention order

Under section 21 IRG, the requested person must be brought before a judge of the nearest Local Court without delay and no later than the day after arrest. The Local Court establishes identity and personal circumstances, explains the applicable rights and records objections. Under section 23 IRG, objections to the detention order or its execution are decided by the Higher Regional Court.

The defence now needs the detention order, the alert or other basis for the arrest, the record of the first hearing and the available extradition documents. Language difficulties, acute illness, medication and other individual needs should be documented early. Expected prison conditions in the requesting state are a separate human-rights issue and require their own evidential assessment.

Detention review by the Higher Regional Court

Under section 26 IRG, the Higher Regional Court must rule on continued detention once the requested person has spent a total of two months in custody for extradition purposes since arrest, provisional arrest or the last continuation decision. Review is normally repeated every two months, although the court may set a shorter period.

The defence need not wait for the periodic review. If the ground for detention falls away, the proceedings are delayed, detention becomes disproportionate or an extradition obstacle becomes more substantial, those circumstances may be raised directly before the Higher Regional Court. Submissions should distinguish between challenges to the detention order, challenges to its execution and objections to extradition itself.

Suspending detention and using less intrusive measures

Under section 25 IRG, the Higher Regional Court may suspend execution of the detention order if less intrusive measures can reliably achieve its purpose. Depending on the case, these may include residence and reporting conditions, surrender of travel documents or security.

A suspension application needs a workable proposal. A general reference to a fixed address will often be insufficient. The court needs verifiable information about where the person will live, how they can be reached, which ties reduce the risk of absconding and how specific conditions can be observed.

Documents that matter for review and suspension

Depending on the case, relevant material may include registration records, a tenancy agreement, employment evidence, family responsibilities, travel and residence documents, and medical records. Any written commitment to comply with conditions should be consistent with the person’s actual living arrangements.

We obtain and examine the detention and alert material, place the requested person’s circumstances in their procedural context and prepare submissions to the General Public Prosecutor’s Office and the Higher Regional Court. A detention application must also remain consistent with the wider extradition defence; an argument for release should not inadvertently weaken objections in the main proceedings.

Proportionality, legal representation and interpretation

Extradition detention must not be maintained for longer or under more restrictive conditions than its purpose requires. Section 27 IRG generally applies the rules governing German pre-trial detention to its execution. Legal assistance must also be secured in detention cases; section 40 IRG governs legal representation in extradition proceedings. A requested person who does not reliably understand the language needs translations of the essential documents and an interpreter for hearings.