Political Persecution in Extradition Law

Legal basis

The bar to extradition for political persecution derives from several sources: Section 6 (1) IRG prohibits extradition for political offenses; Section 6 (2) IRG additionally prohibits it where there are serious grounds to believe that the requested person would be persecuted or punished in the target state on account of their race, religion, nationality, membership of a particular social group or political opinions. Furthermore, Article 3 ECHR protects against extradition where the requested person faces inhuman treatment in the target state. Article 16a of the Basic Law (Grundgesetz, GG) and asylum law can have a supplementary effect, but are not directly applicable in extradition proceedings.

Distinction from refugee protection

Extradition law and asylum law are different procedures with different standards of review. A persecution recognized under asylum law can — but need not — at the same time establish a bar to extradition. The Higher Regional Court (Oberlandesgericht, OLG) is not bound by the findings of the asylum procedure, but may draw on them.

Review by the OLG and the BVerfG

The OLG examines, on the basis of the specific circumstances, whether the criminal prosecution in the requesting state is politically motivated. Indicators: selective criminal prosecution, the timing of the investigations in connection with political events, restriction of defense rights, reports by Amnesty International or UN special rapporteurs. The Federal Constitutional Court (Bundesverfassungsgericht, BVerfG) has stopped extraditions and surrenders on several occasions where human-rights-based bars to extradition could not be ruled out (for example BVerfG, order of 18 August 2021 — 2 BvR 908/21, concerning the threat of inhuman detention conditions in Romania).

← Back to the glossary index