Death Penalty as a Bar to Extradition

Statutory provision

Section 8 IRG provides: extradition is inadmissible where the requested person faces the death penalty in the requesting state, unless the requesting state gives a binding assurance that the death penalty will not be carried out. This provision is consistent with Article 2(1) ECHR (the right to life) and Protocol No. 13 to the ECHR (the complete abolition of the death penalty).

Assurance practice

In practice, extraditions to the USA, for example, regularly require assurances that the death penalty will neither be sought nor imposed nor carried out. These assurances must be reliable and verifiable. The Federal Constitutional Court (Bundesverfassungsgericht, BVerfG) has repeatedly made clear that merely formal assurances are insufficient — what is required is an overall assessment of the rule of law in the destination state.

Relationship to the Soering case law

The Soering judgment of the ECtHR (1989) was precisely a case involving a threatened death penalty. The ECtHR has since made clear that years of uncertainty on death row (the "death row phenomenon") can in itself violate Article 3 ECHR. Section 8 IRG and Soering apply cumulatively.

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