Dual Criminality (Section 3 IRG)

Principle

Dual criminality (double criminality) requires that the offense underlying the request be punishable both under the law of the requesting state and under German law (Section 3 IRG).

Exception for the EAW

For 32 list offenses the requirement is waived (Article 2(2) of the EU Framework Decision, Section 81 No. 4 IRG): among them terrorism, human trafficking, corruption, cybercrime, and aggravated assault.

Standard of review

What matters is not the label given to the offense under the foreign law, but the underlying facts. The Higher Regional Court (Oberlandesgericht, OLG) examines: if these facts were imagined as having been committed in Germany, would they be punishable under German law?

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