Ordre public as a bar to extradition

Concept

The ordre public reservation refers to the protection of fundamental principles of the German legal and constitutional order against foreign legal acts. In extradition law it is found in Section 73 IRG: mutual legal assistance — and therefore extradition as well — is inadmissible where it would conflict with essential principles of the German legal order.

Areas of application

Typical ordre public violations in extradition law: the death penalty (Section 8 IRG as a special rule), proceedings without minimum rule-of-law guarantees (no fair trial), persecution on grounds of political or religious conviction, judgments in absentia without the right to a fresh hearing, and gross violations of the principle of proportionality (e.g. life imprisonment for petty offenses).

Relationship to other bars

The ordre public is subsidiary to more specific bars to extradition (Article 3 ECHR, double jeopardy (ne bis in idem), political offenses). It operates as a catch-all provision for cases that are not covered by any written bar but nonetheless violate the rule-of-law principle. The Federal Constitutional Court (Bundesverfassungsgericht, BVerfG) has linked it to the guarantee of human dignity (Article 1 of the Basic Law) and the rule-of-law principle (Article 20 of the Basic Law).

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