Overview
The Hong Kong Special Administrative Region of the People's Republic of China (香港特別行政區) and the Federal Republic of Germany had a bilateral surrender agreement — the Agreement for the Surrender of Fugitive Offenders, signed in May 2006 and entered into force on 11 April 2009. That agreement has, however, been suspended since 1 August 2020: the German government suspended it in response to the entry into force of the "National Security Law" (NSL) and the postponement of the elections to the Legislative Council; Hong Kong, for its part, suspended extradition cooperation with Germany in August 2020. There is therefore currently no treaty basis for extraditions.
Legal consequence of the suspension: on the German side, extradition cooperation is now assessed on a treaty-free basis under Sections 1 ff. IRG and requires a formal assurance of reciprocity (Section 5 IRG). Formal requests from Hong Kong to Germany are scarcely to be expected in this situation and are of little practical relevance; the actual danger arises from Interpol alerts (Red Notices, diffusions) and from the possibility of an arrest while travelling in third or transit states that still maintain a surrender agreement with Hong Kong or with the People's Republic of China.
The defense in Hong Kong constellations is shaped by a particularity that distinguishes Hong Kong from a classic third state: the progressive erosion of the "One Country, Two Systems" principle and the close legal interlocking with the People's Republic of China. Three review complexes are at the forefront — the political persecution made possible by the NSL and the follow-up legislation under Article 23 (Section 6 IRG), the risk of transfer to the mainland judiciary with its death-penalty and torture risk (Sections 8, 73 sentence 1 IRG), and the extraterritorial reach of the security laws, which captures acts committed abroad by non-residents.
In practice, the suspension means that an extradition from Germany to Hong Kong currently does not take place as a matter of fact. The constellation is nevertheless by no means harmless for those affected: anyone exposed to a Hong Kong prosecution risks arrest in any third state that still maintains a surrender agreement with Hong Kong or with the People's Republic of China, as well as a worldwide manhunt through Interpol. The lawyer's task therefore shifts from the classic admissibility proceedings before the Higher Regional Court toward preventive protection — challenging alerts, depositing protective briefs, and travel-related risk advice.
Legal basis
Following the suspension of the surrender agreement, the Act on International Mutual Legal Assistance in Criminal Matters (IRG) of 23 Dec 1982 applies directly on the German side. Treaty-free extradition requires an assurance of reciprocity under Section 5 IRG; under Section 3 IRG dual criminality is required (the offense must be punishable at its maximum by a custodial sentence of more than one year and, for enforcement, must carry at least four months of sentence remaining). The suspension of a treaty under international law leaves its existence unaffected but lifts the treaty obligations for the duration of the suspension — an extradition could therefore take place only on a treaty-free, discretionary basis.
For German nationals, extradition to Hong Kong is excluded under Article 16(2) of the Basic Law in conjunction with Section 80 IRG; the relaxation in Section 80 IRG applies only to extraditions to EU member states. This bar also applies to dual nationals (cf. BVerfGE 113, 273 — European Arrest Warrant I); multiple nationality has been permitted without a retention permit since the Nationality Modernization Act of 27 June 2024. Of practical significance is that the People's Republic of China does not recognize dual nationality and regularly treats persons of Chinese descent as exclusively Chinese citizens — irrelevant for the German bar, but of considerable significance for consular protection.
On the Hong Kong side, substantive criminal law is determined by the common law and the Crimes Ordinance; security-related proceedings are based on the National Security Law (in force since 30 June 2020) and the supplementary Safeguarding National Security Ordinance under Article 23 of the Basic Law (in force since 23 March 2024). The central authority in extradition cooperation is the Department of Justice of the Special Administrative Region. On the German side, the Higher Regional Courts decide on admissibility (Sections 13 ff. IRG); the granting decision is made by the General Public Prosecutor's Offices, and in cases of fundamental importance or foreign-policy significance by the Federal Office of Justice in agreement with the Federal Foreign Office.
A particularity compared with other third states lies in the fact that, as a Special Administrative Region, Hong Kong formally maintains its own legal system under the "One Country, Two Systems" principle and also acted independently in extradition cooperation — the earlier surrender agreements were concluded with Hong Kong, not with the People's Republic of China. With the entry into force of the NSL and the Safeguarding National Security Ordinance, however, this separation has become permeable in the security-law sphere. For the German admissibility review, it follows that Hong Kong can no longer be treated, without scrutiny, as a rule-of-law-secured special case; rather, in each individual case the question must be asked whether the specific proceedings are subject to Hong Kong's own judiciary or are exposed to the grasp of the mainland security authorities.
Country-specific issues in Hong Kong
Suspension of the surrender agreement as the central starting point: The suspension of the Agreement for the Surrender of Fugitive Offenders as of 1 August 2020 is the legal linchpin of every Hong Kong constellation. It was an expression of a coordinated international response — alongside Germany, Australia, Canada, the United Kingdom, the USA, Ireland, France, the Netherlands and New Zealand, among others, suspended their agreements with Hong Kong. The background was the assessment that the NSL undermines Hong Kong's rule-of-law guarantees and its separation from the mainland judiciary. As long as the suspension persists, any treaty-based extradition obligation is absent; a surrender would at most come into consideration on a treaty-free basis and under full application of the bars to extradition in Sections 6, 8, 73 IRG.
National Security Law and political persecution: The NSL creates four broadly framed offenses — secession, subversion, terrorist activities, and collusion with foreign or external forces. By the consistent assessment of human-rights organizations and Western governments, these offenses are used to suppress opposition, freedom of the press and peaceful protest; the 2024 Safeguarding National Security Ordinance has expanded the scope to include sedition (now up to seven, and where there is a foreign element up to ten years' imprisonment), state secrets and espionage. Proceedings connected to the democracy movement, exile activism or critical reporting are regularly a bar under Section 6(1) IRG (political offense) and Section 6(2) IRG (threatened persecution on grounds of political conviction or membership of a social group) — even where a request is ostensibly based on ordinary offenses.
Extraterritorial application — Article 38 NSL: In Article 38, the NSL expressly claims application to acts committed outside Hong Kong and by persons who are not permanent residents of Hong Kong. This means that even an activist, journalist or academic living in Germany may, on the Hong Kong reading, commit an offense through statements made abroad. This "long-arm jurisdiction" creates an increased risk of Interpol alerts and underscores that a political persecution purpose may lie behind a seemingly neutral request. Since 2023, Hong Kong has repeatedly made public bounties and arrest appeals against activists living abroad.
Risk of transfer to the mainland judiciary — Article 55 NSL: Admittedly, the death penalty was already abolished in Hong Kong itself with the Crimes (Amendment) Ordinance 1993 (last execution 1966), so that no direct death-penalty threat emanates from Hong Kong. Article 55 NSL, however, permits individual security proceedings to be handed over to the mainland authorities of the People's Republic of China in "extreme cases" and prosecuted there under mainland Chinese criminal procedure — including the death penalty existing there and documented torture. An extradition to Hong Kong may therefore not take place without a reliable safeguard against onward transfer to the mainland (Section 8 IRG, Section 73 sentence 1 IRG in conjunction with Article 3 ECHR); where such a safeguard is absent, the extradition is inadmissible.
Abuse of Interpol: Under Article 3 of the Interpol Constitution, any activity of a political, military, religious or racial character is prohibited. Alerts connected to NSL offenses are regularly politically motivated and can be challenged through the Commission for the Control of INTERPOL's Files (CCF). Where there is a Hong Kong or China connection, an arrest at home or in transit abroad must be averted at an early stage through a CCF deletion request, a protective brief with the BKA and the Federal Office of Justice, and consular precaution.
Detention conditions and the human-rights review
For Hong Kong, the human-rights review must capture two levels: detention conditions in Hong Kong itself and the risk of transfer to the mainland Chinese prison system. For Hong Kong, the US State Department's Hong Kong Policy Act Report (2024/2025), Amnesty International and the Bar Human Rights Committee document that in proceedings with a security connection a fair trial can no longer be expected: the right to a lawyer of one's own choosing is subject to reservation, the authorities can exclude individual defense lawyers, and decisions of the Committee for Safeguarding National Security are removed from judicial review. Pre-trial detention reached a peak at the end of 2024 at around 40 percent of the prison population; in security proceedings, prolonged pre-trial detention is criticized as de facto "detention without judgment".
From German case law it follows: in an extradition to Hong Kong, the standard of review developed for Article 3 ECHR / Article 4 of the EU Charter (Aranyosi/Căldăraru, ECJ C-404/15 and C-659/15 PPU — to be applied as the standard even outside the European Arrest Warrant) is regularly decisive against admissibility as soon as there is a connection to security proceedings or a risk of onward transfer to the mainland. A mere diplomatic assurance does not suffice for want of an effective monitoring mechanism; what would be required is a concrete, verifiable assurance directed in particular against a transfer under Article 55 NSL, with monitoring by the German Consulate General — which, given the documented situation, is in practice scarcely obtainable.
Compounding matters is that the People's Republic of China can deny consular access to German dual nationals of Chinese descent, because it does not recognize German nationality. Effective monitoring of treatment after a surrender — as provided for by the Vienna Convention on Consular Relations (VCCR) — would thereby not be guaranteed precisely in the most endangered constellations.
Lines of defense
The defense in Hong Kong extradition proceedings, where structured by a lawyer at an early stage, regularly offers good prospects. Review grid:
- Suspension of the surrender agreement / Section 5 IRG (reciprocity): Since 1 August 2020 any treaty-based extradition obligation has been absent; a surrender would come into consideration only on a treaty-free, discretionary basis and under a formal assurance of reciprocity. This is regularly the first point to be raised.
- Section 6(2) IRG (threatened political persecution): Where there is a connection to the democracy movement, exile activism, journalism or NSL offenses, this must be examined — regularly a bar. It also captures an ostensibly "criminal" request behind which a persecution purpose lies.
- Section 6(1) IRG (political offense): Applicable in cases of secession, subversion, sedition, and security-related offenses under the NSL and the Safeguarding National Security Ordinance.
- Section 8 IRG (death penalty) in conjunction with the transfer risk: Although Hong Kong abolished the death penalty in 1993, where there is a threatened handover of the proceedings to the mainland judiciary under Article 55 NSL, Section 8 IRG is decisive — extradition only under an effective, monitorable assurance against the death penalty and onward transfer.
- Section 73 sentence 1 IRG in conjunction with Article 3 ECHR (detention conditions/torture): Reports of the US State Department, Amnesty International and the Bar Human Rights Committee on security proceedings and the mainland Chinese prison system are to be introduced systematically into the admissibility proceedings; denied consular access as an additional ground for refusal.
- Article 16(2) of the Basic Law in conjunction with Section 80 IRG: Where there is German nationality — including for dual nationals — extradition is excluded.
- Section 3 IRG (dual criminality): NSL offenses such as secession, subversion, collusion or sedition have no German counterpart; expression and protest offenses are covered in Germany by Article 5 of the Basic Law / Articles 10, 11 ECHR — extradition inadmissible to that extent.
- Extraterritoriality (Article 38 NSL): Where charges hinge on acts committed abroad by non-residents, the legitimate connecting factor is regularly absent; this is to be worked out as a self-standing bar and as an indication of the persecution purpose.
- Section 11 IRG (rule of specialty): To be secured separately in treaty-free extradition; a concrete enumeration of the granted offenses, with supplementary requests only upon renewed consent — particularly important to exclude subsequent NSL prosecution.
- Interpol/CCF: Challenge a politically motivated Red Notice or diffusion through Article 3 of the Interpol Constitution; an early CCF deletion request, a protective brief with the BKA and the Federal Office of Justice.
- Constitutional complaint with an urgent application (Section 32 BVerfGG): The standard remedy after the OLG declares admissibility, where there are fundamental-rights violations (Article 1(1), Article 2(2), Article 25 of the Basic Law in conjunction with Article 3 ECHR); where the persecution and transfer challenge has been carefully prepared, the prospects are not slight.
Legal representation in Hong Kong extradition proceedings
An extradition case is a specialized mutual-legal-assistance procedure that goes beyond classic criminal defense. Engaging a defense lawyer specialized in extradition law at an early stage is regularly decisive — not only after the formal extradition arrest warrant has been issued, but already from the moment of an arrest based on an Interpol notice, an SIS alert or a European Arrest Warrant.
As a Certified Specialist in Criminal Law with a focus on extradition law, I advise and represent affected persons nationwide before the competent Higher Regional Courts and in constitutional complaint proceedings before the Federal Constitutional Court.