Extradition under German Law (IRG): Principles, Procedure, Obstacles and Key Features

Extradition refers to the transfer of a person to another state or to an international court for prosecution or enforcement of a sentence. In Germany, extradition is based on the Law on International Mutual Assistance in Criminal Matters (IRG) as well as international treaties and agreements.

1) International Treaties

European Convention on Extradition (EuAlÜbk)

• Foundational instrument of extradition law in Europe (Council of Europe, 13.12.1957).
• Regulates, among other things, transit (Art. 21) and surrender of objects (Art. 20).
• Applies between Germany, 45 member states of the Council of Europe, as well as Israel, Korea and South Africa.
• Russia is formally a member state but no longer actively participates in intra-European extradition.

Extradition within the EU – European Arrest Warrant (EAW)

• Legal basis: Framework Decision of 13.06.2002.
• Germany: Implemented in 2006 through the European Arrest Warrant Act (EuHbG) within the IRG.
• Aim: Simplified, faster handover between judicial authorities while maintaining the principle of speciality.

Bilateral Treaties

• Particularly relevant: the Swiss treaty (supplements the EuAlÜbk; significant, for instance, regarding limitation periods in the Schengen context).
• Further agreements exist with countries such as Australia, Canada, the USA, Tunisia and India.
• The Hong Kong agreement is currently suspended.
• The EU–USA treaty requires bilateral implementation. Germany fulfilled this with a supplementary agreement of 18.04.2006.

2) IRG – Scope and Hierarchy

• The IRG is the starting point for incoming and outgoing legal assistance.
• Distinction: EU member states, Iceland, Norway ↔ other countries.
• Practical guide: RiVASt (Guidelines for the Application of the IRG).
• International law prevails when treaties apply directly.
• The IRG applies if no treaty exists, or where its rules are more favourable.

3) Requirements and Obstacles to Extradition

a) State-related criteria

• Reciprocity: The requesting state must provide the same in return – particularly relevant where no treaty exists.
• Exceptions: Military, fiscal and purely political offences (depending on the instrument).

b) Individual protection (Fundamental and Human Rights)

• No extradition in case of risk of death penalty, political persecution, or in-absentia judgments without fair trial guarantees.
• Standard: German and EU fundamental rights, ordre public.

c) “Double requirement” conditions

• Extraditability of the offence & minimum penalty threshold.
• German nationality: Often a barrier in cases involving non-EU states; within the EU, equal treatment applies (special rules, see § 80 IRG).
• Dual criminality: The conduct must be punishable in both states (exceptions exist for EAW catalogue offences).
• Limitation period: May bar extradition.
• Ne bis in idem: Prohibition of double jeopardy.
• Speciality principle: Prosecution only for the offence for which extradition was granted.

4) Procedure of Extradition (Two-Stage Process)

Step 1: Judicial admissibility proceedings

• Competent: Higher Regional Court (OLG).
• Review: Formal and substantive prerequisites for extradition; no full review of the alleged offence – a consistent presentation of an extraditable crime suffices.
• Exception: Examination of suspicion if misuse or unfair trial is suspected.
• Rights of the person concerned: Right to be heard and access to the case file.

Step 2: Authorisation proceedings

• Competent: Federal Office of Justice (BfJ).
• Principle: If admissible, authorisation must be granted unless specific grounds prevent it.

Provisional arrest & extradition custody

• Following an international arrest warrant: immediate presentation before a local court; right to legal assistance.
• The court does not review the case itself but secures status until OLG decision.
• The Public Prosecutor General applies for provisional extradition custody.
• If admissibility is confirmed: possible formal extradition custody and eventual transfer.

5) Extradition under the European Convention on Extradition

• Form: Written request plus original/certified copy of a judgment, arrest warrant or equivalent document. Indictments alone are insufficient.
• Substance: Dual criminality required; minimum maximum penalty usually 1 year.
• Possible obstacles: Political or fiscal offences, German nationality, ne bis in idem, limitation, death penalty, unfair trial.

6) European Arrest Warrant (EAW) – Key Features

• Simplification: Standardised form, deadlines, reduced review.
• Catalogue offences: For 32 listed crimes, no dual criminality check required.
• German nationals: Extradition possible, but only with guarantees (return transfer, strong review of admissibility).
• Mandatory obstacles: ne bis in idem, limitation, risk of life sentence without review, unfair trial, violation of EU fundamental rights.

7) Simplified Extradition (§ 41 IRG)

• Faster process when an arrest warrant exists and the person consents after being informed by a judge.
• Limited review by the authorising authority.
• Consent may include waiver of speciality.
• Strict requirements for informing the accused (irrevocability, legal advice, consequences).

8) Right to Legal Assistance (§ 40 IRG)

• Defence counsel is mandatory if the legal/factual situation is complex (which is regularly the case in extradition law).
• In EU proceedings, particularly relevant for German nationals and catalogue offences.
• From the moment an application is filed, representation by an experienced criminal defence lawyer is essential.

FAQ on Extradition under the IRG

What is the difference between admissibility and authorisation?
The Higher Regional Court checks admissibility (legality). Authorisation is a subsequent, often political decision by the Federal Office of Justice.

Which documents are required for an extradition request (EuAlÜbk)?
A written request plus an arrest warrant/judgment (original or certified copy) and a detailed description of the offence (place, time, legal assessment).

Is dual criminality always required?
Generally yes. For EAW catalogue offences, the dual criminality test does not apply.

When is extradition prohibited?
In cases of death penalty, political persecution, unfair trial, ne bis in idem, limitation, insufficient penalty threshold or violation of speciality.

Can German nationals be extradited?
Within the EU: yes, under § 80 IRG with safeguards. Outside the EU: nationality often constitutes a barrier.

What does the speciality principle mean?
After surrender, prosecution is only permitted for the offence approved in the extradition decision.

How does provisional extradition custody work?
After arrest: presentation before a local court, legal instruction, application by the Public Prosecutor General, OLG decision on admissibility.

What is the simplified extradition procedure?
A faster process if the person consents and an extradition warrant exists.

What role does reciprocity play?
It is crucial in non-treaty cases.

Are there special agreements with the USA or Switzerland?
Yes. Germany has supplementary agreements with the USA (2006). The Swiss treaty remains important in practice.

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