Article 16(2) of the Basic Law — Protection of German Nationals

Principle

Article 16(2) of the Basic Law (Grundgesetz, GG) provides: “No German may be extradited to a foreign country.” This protection is a fundamental right and applies in principle to all German nationals, regardless of the alleged offense; with respect to the requesting state, the EU exception described below applies.

Exception: EU Member States (Section 80 IRG)

Since the 2000 amendment to the Basic Law (Article 16(2), second sentence, GG), exceptions for EU Member States are possible, provided that the principles of the rule of law are preserved. Section 80 IRG implements this: for the purpose of criminal prosecution, extradition is admissible only if it is ensured that the person will be returned to Germany to serve any sentence and the offense has a substantial connection to the requesting Member State (Section 80(1) IRG). If this connection abroad is lacking, extradition is admissible only by way of exception — where the offense also has no substantial domestic connection, it is punishable under German law, and, on a concrete balancing of interests, the person's legitimate expectation of not being extradited does not prevail (Section 80(2) IRG). For the enforcement of a sentence, only with consent — or, as an alternative: enforcement of the sentence in Germany (Section 80(3) IRG).

Strategic significance

For German nationals, Article 16(2) GG offers considerable defense potential: contesting the connection abroad, applying for enforcement of the sentence in Germany, or a constitutional complaint where the review by the Higher Regional Court (Oberlandesgericht, OLG) is inadequate.

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