Overview
Taiwan (Republic of China, 中華民國, Zhōnghuá Mínguó) has no bilateral extradition treaty with the Federal Republic of Germany. Taiwan is neither a party to the European Convention on Extradition nor an EU member; the European Arrest Warrant does not apply. Extradition relations are therefore assessed exclusively on a treaty-less basis under Sections 1 ff. IRG and, under Section 5 IRG, require a formal assurance of reciprocity.
One feature overlays the entire constellation: the Federal Republic does not recognize Taiwan as a state under international law and pursues — like almost all states — the One-China policy. Germany and Taiwan maintain no diplomatic relations, but rather relations through unofficial representative offices (German Institute Taipei; Taipei Representative Office in Berlin). Formal extradition relations resting on recognition between states are therefore structurally impeded; mutual-legal-assistance cooperation, to the extent it takes place, occurs at the level of technical arrangements. Equally significant in practice is the risk of competing extradition requests from the People's Republic of China, which claims Taiwanese nationals as its own citizens — clearly determining which "addressee" the person would actually be extradited to is here an independent and often decisive point of review.
The defense in Taiwan constellations therefore follows a multi-stage grid: first, it must be clarified whether any admissible extradition relations with Taiwan exist at all and whether, in truth, a request from the People's Republic of China lies behind it. Then the substantive bars apply — above all the death-penalty reservation of Section 8 IRG, since Taiwan retains and has resumed carrying out the death penalty, as well as the review under Section 73 sentence 1 IRG in conjunction with Article 3 ECHR. The Taiwanese penal system and judiciary are to be assessed — unlike in many treaty-less constellations — as functioning in accordance with the rule of law in principle.
Legal basis
In the absence of an agreement under international law, the German Act on International Mutual Legal Assistance in Criminal Matters (IRG) of 23 Dec 1982 applies directly on the German side. Treaty-less extradition requires, under Section 5 IRG, an assurance of reciprocity; under Section 3 IRG, dual criminality is required (an offense punishable by a maximum custodial sentence of more than one year, and, for enforcement, a remaining sentence of at least four months). The lack of state recognition of Taiwan, however, makes a binding "state-to-state" assurance under international law legally delicate — a consideration that can already call into question admissibility as a whole.
For German nationals, extradition — whether to Taiwan or to the People's Republic of China — is excluded under Article 16(2) of the Basic Law in conjunction with Section 80 IRG; the relaxation under Section 80 IRG applies only to extraditions to EU member states. This blocking effect also operates in favor of German-Taiwanese or German-Chinese dual nationals (cf. BVerfGE 113, 273 — European Arrest Warrant I); multiple nationality has been permissible without a retention permit since the Citizenship Modernization Act of 27 Jun 2024.
On the Taiwanese side, extradition is based on the Law of Extradition (引渡法) of 1954; the substantive criminal law follows the Criminal Code of the Republic of China, modeled on continental European templates. A central authority for extradition relations with Germany does not exist in the classic sense, owing to the absence of diplomatic relations; contacts run through the Ministry of Justice (法務部) and the representative offices named above. It should be noted, however, that Taiwan and Germany concluded an arrangement on the transfer of sentenced persons in 2013 and, on 23 Mar 2023, an arrangement on mutual legal assistance in criminal matters (not: on extradition) — the latter signed by the two representative offices. 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 of foreign-policy significance by the Federal Office of Justice in agreement with the Federal Foreign Office.
Country-specific issues in Taiwan
Lack of diplomatic recognition and the One-China policy: Germany maintains no diplomatic relations with Taiwan and does not recognize the Republic of China as a state. This has tangible consequences for an extradition procedure: the customary inter-state framework is missing — the framework in which requests are made, reciprocity (Section 5 IRG) is guaranteed and assurances (Sections 8, 73 IRG) are given in a binding manner under international law. For this reason alone, it must be carefully reviewed in the individual case whether an admissible extradition route to Taiwan exists at all. This account is purely legal and does not evaluate the underlying political question of status.
Competing requests from the People's Republic of China — distinction decisive: The PRC regards Taiwanese nationals as its own citizens and claims criminal jurisdiction over them. In several European proceedings, Taiwanese nationals were therefore extradited not to Taiwan but to the People's Republic of China: following "Operation Great Wall" (Operación Gran Muralla), carried out from December 2016 onward, Spain surrendered over two hundred accused persons (predominantly Taiwanese) to the PRC for cross-border telecommunications fraud; the Spanish Constitutional Court approved this because Spain — unlike with respect to Taiwan — maintains diplomatic relations and a binding extradition treaty with the PRC. The Czech Constitutional Court, by contrast, prohibited the extradition of Taiwanese nationals to the PRC in 2019 as a violation of the ECHR; in Liu v. Poland (judgment of 6 Oct 2022) the ECtHR held that extradition to the PRC would violate Article 3 and Article 6 ECHR on account of the risk of ill-treatment and an unfair trial. For the defense it must therefore always be clarified which state is actually requesting: if the PRC in truth lies behind the matter, its — far more serious — human-rights bars apply (death penalty, torture, political justice).
Death penalty — retained and again carried out: Taiwan adheres to the death penalty. By judgment 113-Hsien-Pan-8 of 20 Sep 2024, on the application of 37 persons sentenced to death, the Taiwanese Constitutional Court held that the death penalty — limited to the most serious homicide offenses and subject to heightened procedural safeguards (including unanimity of the judges' verdict at every instance) — was constitutional; at the end of 2024, 37 persons were on death row. On 16 Jan 2025, Huang Lin-kai (黃麟凱) was executed for murder — the first execution in about five years (the previous one in April 2020); human-rights organizations criticized that the new procedural safeguards had not been observed, as unanimity of the verdict had not been confirmed and a legal remedy was still pending. At least the 2013 German-Taiwanese transfer arrangement contains express reservations against the carrying out of the death penalty — a point of reference that can be put to use in the extradition context for shaping an assurance under Section 8 IRG. The death penalty therefore exists not merely on paper: where a charge carries the threat of the death penalty (in particular aggravated murder), extradition is admissible under Section 8 IRG only subject to an effective, verifiable assurance — which, in the absence of diplomatic relations, is in any event difficult to obtain and to monitor.
Rule of law and Interpol: Unlike in many treaty-less states, Taiwan is a functioning, vibrant democracy with an independent judiciary and an active constitutional jurisdiction; political persecution within the meaning of Section 6 IRG is regularly not a load-bearing consideration in Taiwan constellations — apart from the China distinction. It should be noted, however, that Taiwan is not a member of Interpol; tracing measures therefore often run through other channels or are operated by the PRC through its Interpol access. Where a Red Notice with a China connection affects a Taiwanese person, the political or instrumentalized character (Article 3 of the Interpol Constitution) should be challenged early through the Commission for the Control of INTERPOL's Files (CCF).
Detention conditions and the human-rights review
The Taiwanese penal system is administered by the Agency of Corrections within the Ministry of Justice and, by international comparison, is to be classified as largely orderly and subject to rule-of-law oversight. The U.S. State Department's human-rights report for 2024 records no significant, human-rights-relevant deficiencies in the penal system; independent non-governmental observers obtain access to the facilities, and the authorities investigate and monitor detention conditions. The problem identified is above all temporary overcrowding, which is addressed by measures such as work-release. Taiwan thus differs markedly from states with structurally dire penal systems.
Nevertheless, 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 a standard even outside the European Arrest Warrant) remains applicable. Unlike with high-risk states, in the case of Taiwan it will, as a rule, not already be load-bearing on the basis of general detention conditions; what is decisive is rather the death-penalty aspect (Section 8 IRG) and — if the proceedings in truth concern the PRC — the situation there. Any assurance would have to be drafted in a concrete, facility-specific and verifiable manner; the very absence of diplomatic relations, however, makes it difficult to establish a robust monitoring mechanism.
Consular assistance cannot, in the absence of diplomatic relations, be provided within the classic framework of the Vienna Convention on Consular Relations (VCCR), but at most de facto through the German Institute Taipei. This limited possibility of protection and oversight after a surrender must be taken into account independently in the admissibility proceedings — in particular where it concerns the monitoring of an assurance that has been given.
Lines of defense
The defense in Taiwanese extradition proceedings is regularly promising where it is structured by a lawyer at an early stage. Review grid:
- Addressee of the request / China distinction: to be clarified as a priority whether it is actually Taiwan or in truth the PRC that is requesting — where there is a China connection, its far more serious bars apply (death penalty, torture, political justice; cf. ECtHR Liu v. Poland, 6 Oct 2022). The risk of confusion or circumvention must be placed on the record.
- Lack of state recognition / Section 5 IRG (reciprocity): in the absence of diplomatic relations, the soundness of a binding reciprocity assurance and other assurances under international law must be separately scrutinized — this alone may stand in the way of admissibility.
- Section 8 IRG (death penalty): where charges carry the threat of the Taiwanese death penalty (aggravated murder), extradition only subject to an effective, verifiable and monitorable assurance — practically hard to secure given the resumption of executions (execution on 16 Jan 2025) and the absence of consular oversight.
- Article 16(2) of the Basic Law in conjunction with Section 80 IRG: where there is German nationality — including dual nationals — extradition to Taiwan, as to the PRC, is excluded.
- Section 73 sentence 1 IRG in conjunction with Article 3 ECHR (detention conditions): with a pure Taiwan connection, regularly not already load-bearing on the basis of general penal conditions (orderly penal system, cf. U.S. State Department 2024); with a China connection, by contrast, central.
- Section 3 IRG (dual criminality): mirror-image review of the Taiwanese offense definitions; for economic- and fraud-related charges (such as telecommunications fraud), concrete subsumption under German law.
- Section 6 IRG (political offense / persecution): with a pure Taiwan connection rarely applicable (functioning democracy); where a Chinese interest lies behind it as the purpose of persecution, however, to be reviewed carefully.
- Section 9 IRG (double jeopardy, ne bis in idem): where there are parallel investigations in Germany, Taiwan or the PRC, examine the blocking effect — especially relevant in cross-border fraud complexes with multiple crime scenes.
- Section 11 IRG (rule of specialty): to be separately secured in treaty-less extradition; concrete enumeration of the offenses granted, supplementary requests only with renewed consent.
- Interpol/CCF: since Taiwan is not a member of Interpol, often China-driven alerts — challenge a politically motivated Red Notice or diffusion under Article 3 of the Interpol Constitution; early CCF deletion request, protective brief to the BKA and the Federal Office of Justice.
- Constitutional complaint with an urgent application (Section 32 BVerfGG): after the OLG has declared the extradition admissible, the standard means where fundamental rights are violated (Article 1(1), Article 2(2), Article 25 of the Basic Law in conjunction with Article 3 ECHR); where a death-penalty or China-distinction objection has been carefully worked up, the prospects of success are not slight.
Legal representation in Taiwanese 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.