Extradition Law – Principles, Procedure, Obstacles and Key Features – Lawyers Frankfurt

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

Extradition in German law refers to the formal transfer of a person to another state or to an international criminal court so that criminal proceedings can be conducted or an existing sentence can be enforced. The central legal framework is the German Law on International Cooperation in Criminal Matters (Gesetz über die internationale Rechtshilfe in Strafsachen – IRG), supplemented by European instruments and numerous bilateral treaties. For the person concerned, extradition proceedings are not merely a technical question of cooperation between authorities, but a profound interference with the fundamental right to liberty and fair trial guarantees.

Our English-speaking criminal law lawyers in Frankfurt and the team presented in our overview on criminal defence practice areas represent clients in extradition cases throughout Germany – both in incoming and outgoing requests. For a general overview of procedural stages in German criminal cases, see also our entry on the course of criminal proceedings in Germany. The following guide explains the key principles, the typical two-stage procedure and frequent obstacles to extradition under German law from a defence perspective.

1) International Treaties

European Convention on Extradition (EuAlÜbk)

The European Convention on Extradition of 13 December 1957 is the traditional backbone of extradition law between most member states of the Council of Europe and several non-European states. It regulates when extradition must be granted, which documents are required and under which circumstances a requested state may refuse cooperation.

• The Convention applies between Germany and the majority of Council of Europe member states as well as certain third countries (for example Israel, South Korea and South Africa).
• It contains specific rules on transit through third states and on the surrender of objects (for example seized evidence, documents or assets).
• The Convention is supplemented by several additional protocols which, among other things, extend or restrict extradition for fiscal or military offences.

In practice, the Convention continues to be relevant wherever the newer European Arrest Warrant does not apply – for example in relations with non-EU Council of Europe states or in older cases which still fall under traditional extradition rules.

Extradition within the EU – European Arrest Warrant (EAW)

Within the European Union, extradition has largely been replaced by the European Arrest Warrant (EAW). The EAW is based on the Council Framework Decision of 13 June 2002 and was implemented in Germany by the European Arrest Warrant Act (EuHbG) through amendments to the IRG.

• The EAW is designed as a system of mutual recognition of judicial decisions between EU Member States and therefore significantly speeds up surrender procedures.
• For 32 so-called catalogue offences (e.g. terrorism, human trafficking, drug trafficking, corruption, money laundering), the executing state does not examine dual criminality in detail.
• Nevertheless, fundamental rights guaranteed by the EU Charter and the European Convention on Human Rights must always be respected; obvious risks of torture, inhuman detention or flagrant denial of justice can prevent surrender.

For those concerned, it is important to understand that an EAW is not merely an administrative document: it is a judicial decision that can lead to rapid arrest in any EU Member State. Early contact with an experienced criminal defence lawyer is therefore essential.

Bilateral Treaties

Beyond the multilateral framework, Germany has concluded a number of bilateral extradition treaties, which refine or supplement general provisions of the IRG and the European Convention on Extradition.

• Particularly important in practice is the extradition treaty with Switzerland, which supplements the European Convention and contains specific provisions, for example on limitation periods in the Schengen context.
• Further treaties exist with states such as Australia, Canada, the United States, Tunisia and India. In addition, the EU–USA extradition agreement is implemented through bilateral arrangements with individual Member States, including Germany.
• If no treaty exists, extradition is based directly on the IRG and general principles of international law, with reciprocity playing a central role.

2) IRG – Scope and Hierarchy

The IRG is the starting point for most questions of international mutual assistance in criminal matters in Germany. It contains the general rules on extradition, legal assistance, enforcement of foreign judgments and related topics.

• The IRG differentiates between cooperation with EU Member States (including Iceland and Norway) and cooperation with other states. Special parts of the Act govern the European Arrest Warrant and relations with the EU area.
• Where applicable, international treaties – such as the European Convention on Extradition or bilateral treaties – take precedence. The IRG applies in addition or as a fallback where no treaty exists or where it grants more favourable rights.
• In practice, German authorities follow administrative guidelines such as the RiVASt (Guidelines for the Application of the IRG) when handling extradition requests.

For a broader overview of the interaction between substantive offences and procedure, see our entry on criminal offences and criminal procedure as well as our guide to German criminal procedure.

3) Requirements and Obstacles to Extradition

a) State-related criteria

Extradition is a form of cooperation between sovereign states. Even where the person concerned agrees, the German authorities must examine whether cooperation is legally permitted and politically acceptable.

• Reciprocity: In relations without a treaty, extradition usually presupposes that the requesting state would, in principle, grant extradition to Germany in comparable situations.
• Nature of the offence: Many instruments allow or require refusal of extradition for purely political offences, certain military offences or – depending on the treaty – specific fiscal offences.
• Ne bis in idem: Extradition is generally excluded if the person has already been finally acquitted or convicted for the same facts in Germany or another state whose judgment must be recognised.

b) Individual protection (Fundamental and Human Rights)

German and European constitutional standards play a central role in extradition law. The person concerned must not be exposed to serious human rights violations in the requesting state.

• Extradition is excluded if there is a concrete risk of the death penalty, torture or inhuman or degrading treatment.
• Political persecution, manifestly unfair proceedings or prison conditions that clearly violate minimum standards may also prevent extradition.
• The German courts and the Federal Office of Justice must consider decisions of the European Court of Human Rights and constitutional jurisprudence when assessing such obstacles.

c) “Double requirement” conditions

In addition to state and human-rights-related criteria, a number of legal requirements concern the specific offence and the personal situation of the requested person.

• Extraditable offence and minimum severity: Extradition generally requires that the alleged offence reaches a certain threshold of seriousness (for example, a minimum maximum sentence of one year).
• Dual criminality: The conduct must be punishable both under the law of the requesting state and under German law, unless a treaty (such as the EAW catalogue) waives this requirement.
• Limitation periods: If the offence is already time-barred under German law or, depending on the applicable instrument, in the requesting state, extradition may not be granted.
• German nationality: Extradition of German nationals to non-EU states is subject to particularly strict conditions, while within the EU, special rules in Section 80 IRG – combined with guarantees on return and enforcement – apply.
• Speciality principle: After extradition has taken place, the person may in principle only be prosecuted for those offences for which extradition was expressly granted.

4) Procedure of Extradition (Two-Stage Process)

German extradition proceedings typically follow a two-stage structure: first, the courts examine the admissibility; secondly, an administrative authority decides on authorisation.

Step 1: Judicial admissibility proceedings

The Higher Regional Court (Oberlandesgericht, OLG) in whose district the person is arrested decides on the admissibility of extradition. Its task is not to conduct a full criminal trial, but to verify whether the legal requirements for extradition are met.

• The court examines formal aspects (identity, documentation, competence of the requesting authority) and substantive criteria (dual criminality, limitation periods, human-rights obstacles).
• The alleged facts are usually taken from the foreign arrest warrant or judgment; only in exceptional cases – for instance if there are indications of misuse of the proceedings – will the OLG explore evidence in greater depth.
• The person concerned has the right to be heard and, through their defence counsel, to inspect the case file. Details are explained in our entry on access to files under Section 147 StPO.

Step 2: Authorisation proceedings

If the OLG declares extradition admissible, the file is transmitted to the Federal Office of Justice (Bundesamt für Justiz, BfJ). It decides whether extradition will actually be authorised.

• As a rule, authorisation follows the court’s finding of admissibility; however, further obstacles (for example foreign policy concerns or new information on detention conditions) may still lead to refusal.
• The speciality principle and any conditions (e.g. sentence limits, guarantees on treatment of the person) are documented in the authorisation decision.
• Defence counsel can present additional submissions at this stage and insist that new developments be taken into account.

Provisional arrest and extradition custody

Extradition proceedings are often preceded by provisional arrest on the basis of an international arrest warrant or an EAW. The person must promptly be brought before a local court (Amtsgericht) and informed of their rights.

• The local court decides on provisional extradition custody and informs the person about the allegation and their rights, including the right to remain silent and to consult a defence lawyer.
• The Public Prosecutor General usually applies for extradition custody until the OLG has decided on admissibility.
• Extradition custody is closely related to the concepts of arrest warrant, pre-trial detention and presentation before the investigating judge, all of which involve strict fundamental-rights guarantees.

5) Extradition under the European Convention on Extradition

Where the European Convention on Extradition applies, the requesting state must submit a written request accompanied by specific documents. These typically include either a foreign judgment or an arrest warrant, as well as a description of the facts and the relevant legal provisions.

• A mere indictment is usually not sufficient; there must be a judicial decision justifying deprivation of liberty (judgment or arrest warrant).
• The requesting state must describe the offence in sufficient detail (time, place, alleged conduct, legal classification) to allow review of dual criminality and limitation.
• Typical grounds for refusal of extradition under the Convention include political offences, ne bis in idem, limitation, inadequate human-rights safeguards or a risk of the death penalty.

6) European Arrest Warrant (EAW) – Key Features

The EAW is designed to replace traditional extradition between EU Member States with a simplified surrender procedure. Nevertheless, it remains subject to judicial control in both the issuing and the executing state.

• The EAW is based on a standardised form which must contain detailed information on the person sought, the allegations and the legal basis.
• The executing state is bound by strict time-limits; the overall procedure is significantly faster than traditional extradition, which increases the need for rapid defence action.
• For catalogue offences, no separate dual-criminality check is carried out; for all other offences, the conduct must be punishable under both legal systems.
• German nationals may be surrendered on the basis of an EAW, but specific safeguards apply (for example the possibility of returning to Germany for enforcement of the sentence).
• Mandatory refusal grounds include ne bis in idem, obvious limitation, serious deficiencies in fair-trial guarantees or disproportionate life sentences without the prospect of review.

7) Simplified Extradition (Section 41 IRG)

The IRG provides for a simplified extradition procedure if the person concerned consents to extradition after being informed by a judge. This model is primarily intended for clear cases in which the person wishes to avoid lengthy procedures, for example to return to their home country or to commence serving a sentence.

• Consent to simplified extradition can considerably shorten the procedure, but it also restricts later possibilities of legal challenge.
• The judge must thoroughly inform the person about the consequences, including the fact that consent is in principle irrevocable.
• The person may also waive the protection of the speciality principle, which can have far-reaching consequences in the requesting state.

Because a decision for simplified extradition is often made under time pressure in custody, independent advice from a specialist criminal defence lawyer is particularly important.

8) Right to Legal Assistance (Section 40 IRG)

Extradition proceedings are legally complex and often involve foreign languages, parallel proceedings in another state and difficult questions of human-rights protection. Section 40 IRG therefore emphasises the central role of defence counsel.

• Defence counsel must be appointed if the factual or legal situation is complicated – which is regularly the case in cross-border proceedings.
• In many situations, it is advisable to coordinate with lawyers in the requesting state to ensure a coherent defence strategy.
• The defence lawyer in Germany safeguards access to files, prepares submissions to the OLG and the Federal Office of Justice and monitors detention conditions as well as deadlines.

Those affected by extradition proceedings are usually also formally accused persons in the sense of German criminal procedure. Our entries on the accused in German criminal proceedings, police summons, searches and seizures provide further background on typical investigative measures.

FAQ on Extradition under the IRG

1. What is the difference between admissibility and authorisation?

The Higher Regional Court (OLG) decides whether extradition is admissible, i.e. whether all legal requirements and obstacles under the IRG and applicable treaties have been correctly assessed. Only if the OLG confirms admissibility does the Federal Office of Justice decide – as a second, often more political step – whether extradition is actually authorised. In exceptional situations, the Federal Office may refuse authorisation even after a positive court decision, for example if new human-rights concerns arise.

2. Which documents are required for an extradition request under the European Convention?

As a rule, the requesting state must submit a written request together with an original or certified copy of a judgment or arrest warrant. In addition, a sufficiently detailed description of the alleged conduct (time, place, modus operandi) and the relevant criminal provisions must be provided. This enables the German courts to verify dual criminality, limitation periods and the seriousness of the offence.

3. Is dual criminality always required?

In classic extradition under the European Convention or under the IRG without a treaty, the principle of dual criminality is the rule: the conduct must constitute an offence in both legal systems. Under the European Arrest Warrant, however, this requirement is waived for certain catalogue offences. Nevertheless, courts still examine whether the description of the conduct fits within one of the listed categories.

4. When is extradition prohibited?

Extradition is prohibited in particular if there is a concrete risk of the death penalty, torture or inhuman or degrading treatment, if the proceedings are manifestly unfair, if the offence is already time-barred, if ne bis in idem applies or if the speciality principle cannot be guaranteed. Moreover, purely political offences or certain military offences can constitute obstacles, depending on the applicable treaty.

5. Can German nationals be extradited?

Article 16 of the German Basic Law protects German citizens against extradition but allows the legislature to create specific exceptions, especially for extradition within the European Union and to international courts. Under Section 80 IRG, extradition of German nationals to EU Member States is possible under strict conditions and usually in conjunction with guarantees – for example that a later sentence can be enforced in Germany. Outside the EU, German nationality regularly constitutes a major obstacle to extradition.

6. What does the speciality principle mean in practice?

The speciality principle obliges the requesting state to prosecute and punish the extradited person only for those offences for which extradition was expressly granted. Prosecution for other offences is only possible under narrow conditions, for example if the requested state approves an extension or if the person voluntarily remains in the requesting state for an extended period after final discharge.

7. How does provisional extradition custody work?

After provisional arrest, the person is brought before a local court, which informs them of the reasons for the arrest and their rights. The court may order extradition custody if there is a risk of absconding or other grounds. During this time, the OLG examines admissibility. Defence counsel can apply for relaxation or suspension of custody, similar to regular pre-trial detention.

8. What is the simplified extradition procedure?

In the simplified procedure under Section 41 IRG, the person consents to extradition after judicial instruction. This speeds up the process and may allow an earlier transfer or commencement of sentence. However, because consent is generally irrevocable and may include a waiver of speciality, it should only be given after detailed legal advice.

9. What role does reciprocity play?

Where no treaty exists, reciprocity is often a decisive factor. Germany regularly examines whether the requesting state would itself extradite in comparable cases and whether mutual trust in the other state’s legal system is justified. Lack of reciprocity can lead to refusal of extradition.

10. Are there special agreements with the USA or Switzerland?

Yes. With Switzerland, Germany has long-standing treaty arrangements which supplement the European Convention on Extradition and contain detailed rules, for example on limitation and tax offences. Relations with the United States are governed by the EU–US extradition agreement and an additional bilateral treaty, which specify the applicable extradition standards and documentation requirements.

11. Do I need a defence lawyer in both Germany and the requesting state?

In many complex cases, effective defence requires coordination between lawyers in Germany and in the requesting state. The German defence lawyer focuses on admissibility, human-rights obstacles, custody and communication with the OLG and the Federal Office of Justice. Counsel in the requesting state assesses the underlying criminal case, potential sentences and prospects of acquittal or negotiated solutions. Our attorneys are experienced in coordinating such cross-border defence strategies.

12. Where can I read more?

Our in-depth guide: Extradition under German Law (IRG) and general criminal defence in Germany or the Frankfurt Airport Arrest and Extradition Guide.

Contact Us – Your Criminal Defence Lawyers in Frankfurt and Nationwide

• Dr. Caroline Jacob, Criminal Defence Lawyer, Specialist Lawyer for Criminal Law
• Frank M. Peter, Criminal Defence Lawyer, Specialist Lawyer for Criminal Law
• Of Counsel: Prof. Dr. Frank Peter Schuster
• Cooperation Partner: Tax Consultant and former Tax Investigator Frank Wehrheim

Our law firm Buchert Jacob Peter has been specialising in criminal defence for over 25 years in Frankfurt am Main. We represent clients throughout Germany in all stages of criminal proceedings, including extradition and European Arrest Warrant cases. You can contact us by telephone, email or via our contact page.

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