Overview
Extradition from Germany to the United States of America is in practice the most sought-after bilateral extradition relationship outside Europe. The basis is the extradition treaty of 20 June 1978 (US extradition treaty) in conjunction with the supplementary treaties of 1986 and 2006 and the EU–US Extradition Agreement of 25 June 2003.
The extradition of German nationals to the USA is excluded under Article 16(2) of the Basic Law and Art. 7(1) sentence 1 of the US extradition treaty. The constellations of practical relevance therefore predominantly concern non-Germans resident or staying in Germany, as well as dual nationals.
Typical cases involve white-collar crime (insider trading, FCPA, sanctions), cyber and drug offenses, and tax-crime proceedings. On the German side, a review of reasonable suspicion generally does not take place (settled case law, including OLG Dresden, decision of 2 Dec 2008 — OLG Ausl 117/08).
Legal basis
Extradition to the USA is governed by the extradition treaty between the Federal Republic of Germany and the United States of America of 20 June 1978 (BGBl. 1980 II p. 646, 1300), amended by the Supplementary Treaty of 21 October 1986 (BGBl. 1988 II p. 1086; 1993 II p. 846) and the Second Supplementary Treaty of 18 April 2006 (BGBl. 2007 II p. 1634; 2010 II p. 829) — together the "US extradition treaty".
In addition, the Agreement between the European Union and the United States of America on extradition of 25 June 2003 applies (OJ EU L 181/27 of 19 July 2003; BGBl. 2007 II p. 1618, 1643) — the "EU–US Agreement". The EU–US Agreement takes precedence over the bilateral treaty to the extent that it contains more favorable or more precise provisions (Art. 3 of the EU–US Agreement).
Domestically, Sections 1 ff. IRG apply insofar as the treaties do not provide overriding rules. The decisive principle is dual criminality (Art. 2 of the US extradition treaty in conjunction with Art. 4 of the EU–US Agreement). Extraditable offenses are those punishable under the law of both states by a maximum custodial sentence of more than one year.
The legal classification under the respective law is immaterial; what matters is the substantive comparability of the conduct. For fiscal offenses, extradition is in principle possible under Art. 2(4) of the US extradition treaty.
Country-specific issues in the USA
The most significant country-specific point of review is the death penalty. Under Art. 12 of the US extradition treaty as amended by the Second Supplementary Treaty (implementing Art. 13 of the EU–US Agreement), extradition may be granted on condition that the death penalty is not imposed or, in any event, not carried out. The new version binds the USA directly, without the need to obtain an express assurance; the USA may, however, refuse the condition and thereby cause the extradition to fail.
The second core issue is a life sentence without the prospect of suspension on probation (life without parole). Under the case law of the BVerfG (2 BvR 2333/08) and the ECtHR, such a sentence may violate Article 3 ECHR where there is no realistic prospect of review. In several US states life without parole is provided for by statute; an assurance of reviewability must therefore regularly be obtained.
Third: on the German side, a review of reasonable suspicion generally does not take place (OLG Dresden, decision of 2 Dec 2008 — OLG Ausl 117/08). The showing of sufficient reasonable suspicion that German law would otherwise require is replaced by the treaty requirements under Art. 14 of the US extradition treaty.
Fourth: the de minimis threshold for the enforcement of a sentence is, under Art. 1(2) of the US extradition treaty, six months of sentence still to be served — significantly below the German threshold under Section 3(2) IRG (four months).
Detention conditions and the human-rights review
Detention conditions in US prisons vary considerably depending on the state and the facility. Federal prisons (Federal Bureau of Prisons) on average meet a higher standard than many individual states. Particularly critical are facilities with high overcrowding (including California in the past) and supermax prisons with permanent isolation.
German case law has recognized human-rights concerns in individual cases — in particular regarding placement in solitary confinement (administrative segregation) and the enforcement of life sentences without the prospect of suspension. The Higher Regional Court of Frankfurt am Main (2 AuslA 97/12) and the BVerfG (2 BvR 2333/08) have, in individual constellations, stopped extraditions or ordered further review.
In defense practice, robust documentation must be obtained regarding the specific prison envisaged, the duration of any pre-trial detention, and the prospects of solitary confinement (SHU, ADX Florence), and submitted to the OLG in the admissibility proceedings.
Lines of defense
The defense in US extradition proceedings follows a multi-stage pattern of review:
- Article 16(2) of the Basic Law / Art. 7 of the US extradition treaty: where the person is a German national, extradition is excluded. Dual nationals are treated equally (BVerfGE 113, 273 — European Arrest Warrant I, with continuing effect).
- Art. 12 of the US extradition treaty (new version) (death penalty): where the charges carry a possible threat of the death penalty, the grant must be made subject to a death-penalty reservation. If the USA refuses, the extradition fails.
- Article 3 ECHR (life without parole / solitary confinement): obtaining an assurance as to the reviewability of the sentence and as to detention conditions; submission of the relevant ECtHR and BVerfG decisions.
- Art. 4 of the EU–US Agreement (dual criminality): careful review of whether the underlying facts would also be punishable under German law by a custodial sentence of more than one year. Particularly with US-specific offenses (conspiracy, RICO, wire fraud), comparability is not always present.
- Rule of specialty (Art. 22 of the US extradition treaty): after extradition, prosecution may take place only for the offenses for which the grant was issued. A subsequent extension is permissible only with the consent of the requested state.
- Art. 6 of the EU–US Agreement (fiscal offenses): extradition for tax, customs and currency offenses is in principle possible; review of the delimitation from political offenses.
- Constitutional complaint with an urgent application (Section 32 BVerfGG): after a declaration of admissibility by the OLG, the standard remedy in cases of fundamental-rights violations. Prospects of success are not slight where a detention-conditions or life-without-parole objection has been carefully prepared.
Legal representation in US 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.