Interpol Lawyer Germany: Red Notice and Extradition Defence

Germany’s approach to extradition is shaped by the most protective nationality provision in the EU: Article 16(2) of the German Basic Law (Grundgesetz) prohibits the extradition of German nationals to non-EU states. This absolute constitutional protection applies regardless of the nature of the charges, the requesting state, or the severity of the alleged offence. German nationals cannot be extradited to the United States, Russia, China, or any country outside the European Union, whatever bilateral treaty may exist between Germany and that state.

For foreign nationals in Germany, extradition to treaty partners is available and processed by the Higher Regional Courts (Oberlandesgerichte). Germany has extradition treaties with numerous states including the US under the 1978 US-Germany Extradition Treaty, and with EU member states under the European Arrest Warrant framework. Post-Brexit, surrender to the UK operates under the TCA’s surrender provisions.

German extradition requests from non-EU states are processed by the Higher Regional Court (Oberlandesgericht) in the district where the person sought is located. The court conducts a detailed legal admissibility review: dual criminality assessment, treaty compliance, the political offence exception, statute of limitations, double jeopardy, and human rights concerns. The Federal Constitutional Court (Bundesverfassungsgericht) has jurisdiction to hear extradition-related constitutional complaints, providing an additional tier of rights protection that has been used effectively in high-profile cases.

Following a positive court ruling, the Federal Ministry of Justice (Bundesjustizministerium) makes the executive decision on surrender. The Ministry has discretionary authority to refuse extradition on policy grounds even after a positive court ruling. In practice, the Ministry exercises this discretion in cases involving diplomatic sensitivity, significant public interest concerns, or where the individual has established substantial ties to Germany.

German courts apply detailed dual criminality analysis to US extradition requests and have refused requests where the US jurisdictional basis relied on minor connections to the US — a brief US entry, a wire transfer routed through a US bank, use of US-based technology infrastructure — while the substantive conduct occurred outside the US. German courts examine whether the conduct, assessed under German law, would constitute a criminal offence of the same general character as the charged US offence. This can be determinative in financial crime cases where US prosecutorial theory relies on broad aiding and abetting liability or jurisdictional hooks that have no German equivalent.

The US-Germany treaty uses a list approach supplemented by a dual criminality clause for offences not on the list. For listed offences, the specific US charge must correspond to a German criminal statute. German courts have found that some US fraud charges — particularly those based on honest services fraud theory or on extraterritorial FCPA application — do not have clear equivalents under German law, providing a basis for refusing extradition.

Germany’s Basic Law provides robust human rights protections that are directly applicable in extradition proceedings. Article 1 (human dignity), Article 2 (personal liberty), and Article 19(4) (effective judicial review) all apply. The Federal Constitutional Court has established that extradition must be refused where it would result in treatment inconsistent with human dignity, including where prison conditions in the requesting state violate minimum standards or where the individual would face a disproportionate sentence.

For US extradition requests, the prospect of lengthy pre-trial detention and disproportionate sentences under US federal sentencing guidelines has been raised in German courts. While no German court has refused extradition to the US solely on sentence-length grounds, the proportionality principle is an active consideration in German extradition jurisprudence and has influenced the conditions under which surrender has been approved — for example, requiring assurances about sentencing exposure.

Where a German national cannot be extradited, Germany’s criminal code provides for prosecution of that national in Germany for offences committed abroad — the principle of active personality jurisdiction. Where a foreign state requests extradition of a German national and that request is refused on constitutional grounds, the requesting state can ask Germany to prosecute the individual domestically. German prosecutors have exercised this jurisdiction in significant cases, resulting in German prosecutions for offences committed in other jurisdictions. For German nationals, this means that the constitutional protection from extradition does not provide immunity from prosecution — it provides the right to be prosecuted in Germany rather than surrendered abroad.

Contact our team for advice on Germany-connected extradition and Interpol cases. See our guidance on CCF challenges and Red Notice removal.