Extradition in criminal law
In a globalised world, crime and its prosecution do not stop at national borders. It would therefore be wrong to believe that an offence committed abroad has no consequences.
Extradition and surrender of accused persons in the context of international execution of sentences are part of the daily routine of a criminal defence lawyer.
1. Intergovernmental Relations in Criminal Law
Under certain conditions, the Federal Republic of Germany may extradite or transfer foreign citizens to other countries.
Extradition is the term used to refer to international relations in criminal law between the Federal Republic of Germany and other states which do not belong to the European Union.
Relations between Germany and other EU states regarding the transmission of criminals are referred to as rendition.
“Extradition” means that a third State (requesting State) requests another State (requested State) to surrender a person residing in the requested State on grounds of criminal prosecution or execution of sentence. Extradition to a non-EU country is inadmissible for own nationals. This is regulated in the German Constitution, cf. Article 16.2 sentence 1 of the German Constitution. The German state will then take over the prosecution itself.
In the European Union, the so-called “surrender” of a person has been carried out since 2004 on the basis of a European arrest warrant. Moreover, requests for mutual assistance in the EU are less bureaucratic and therefore much more effective.
The (mere) search for criminals abroad must be distinguished from extradition traffic. It is not part of the extradition procedure.
Extradition must also be distinguished from deportation/depatriation. Deportation is a national measure of aliens law and security that forces the expellee to leave the state. If the expellee refuses to comply, the expulsion is enforced by way of deportation.
2. Extradition Procedure
Extradition proceedings begin with the receipt of a written request for extradition from the requesting State to the requested State (so-called extradition request). The requesting State must conclusively claim that the person concerned has committed an extraditable offence. Evidence is not required at this early stage of the procedure.
The Federal Ministry of Justice and Consumer Protection are responsible for the processing. In practice, however, most of the powers have been transferred to the Land governments and subordinate authorities.
The further process step has two stages. A judicial admissibility procedure is followed by an official approval procedure.
At the first stage, in the judicial admissibility procedure, the Higher Regional Court decides on the admissibility of extradition (§§ 31, 32 IRG – Law on International Mutual Legal Assistance in Criminal Matters). The decision is binding and not subject to appeal.
In the subsequent licensing procedure, the second one examines the content of extradition at the ministry level. If extradition is refused, the request shall lapse. However, this shall not prevent the requesting State from making a new request.
If extradition is granted, the decision of the granting authority can be reviewed by the Higher Regional Court under certain conditions.
In order to prevent the persecuted person from evading extradition during the current proceedings, extradition custody can be ordered.
Once extradition has been authorised, the person pursued shall be handed over to the authorities of the requesting State. If necessary, imprisonment may be ordered in accordance with § 34 IRG to ensure that the transfer is carried out.
3. Conditions of Extradition
In principle, legal assistance is provided only to states which provide legal assistance themselves (so-called principle of reciprocity, cf. § 5 IRG). The principle of reciprocity states that the act complained of by the requesting State must also constitute an offence punishable in the requested State, § 2 IRG. In addition, according to the principle of double criminality, such conduct must also be a criminal offence under German law.
The requesting State must also observe the principle of speciality (§ 11 IRG). Acts other than those for which extradition was ordered may not be prosecuted without the consent of the requested State.
Obstacles to extradition may result from violations of the fundamental principles of German law in the requesting state. Extradition is prohibited, for example, if the persecuted person is threatened with torture or inhuman treatment in the requesting state.
Other obstacles are
- Threatening political persecution or persecution otherwise contrary to the rule of law, Section 6 (2) IRG
- Military Crimes, § 7 IRG
- Impending death penalty in the requesting state, § 8 IRG
- Threat of double punishment, § 9 No. 1 IRG
- Limitation of the offence, § 9 No. 2 IRG
4. Criminal Defence Lawyer
The persecuted person can and should choose a lawyer in any situation of the proceedings (§ 40 Paragraph 1 IRG). In addition, legal counsel may be assisted if the difficulty of the factual and legal situation requires cooperation (Section 40 (2) No. 1 IRG), if the person persecuted cannot adequately exercise his rights himself (Section 40 (2) No. 2 IRG) or if the person persecuted is a minor (Section 40 (2) No. 3 IRG).
5. Surrender within the European Union
In the European Union, the so-called “surrender” of a person has been carried out since 2004 on the basis of a European arrest warrant. This created a special law that also allows the extradition of German citizens. Germany can therefore extradite Germans to other EU states at their request and does so regularly. In addition, the requirement of double criminality does not apply to certain offences.
A European arrest warrant is a judicial decision made in one Member State (issuing State) for the arrest and surrender by another Member State (executing State) of a wanted person for the purpose of prosecution or execution of a custodial sentence or detention order. The European arrest warrant is based on a previously issued national arrest.
6. Surrender Procedure
The procedure differs from extradition. The surrender procedure under the European arrest warrant is single-stage, whereas the classical extradition procedure is two-stage, since there is a ministerial authorisation level. The European arrest warrant procedure also opens up direct contacts between the judicial authorities involved. Transfers within the EU are thus faster and more routine than deliveries to third countries.
Nevertheless, in many cases it is worth fighting.
