Extradition to non-EU states — the basics
While the European Arrest Warrant governs the surrender procedure within the EU, extradition to states outside the EU — so-called non-EU states (third states) — follows classic extradition law. The decisive sources of law are the IRG (Sections 2–42), international extradition treaties and the general principles of public international law.
Unlike with the EAW, the principle of reciprocity applies in dealings with non-EU states (Section 5 IRG): as a rule, Germany extradites only to states that are themselves willing to surrender persons to Germany under comparable conditions. Beyond that, extradition without a basis in public international law is legally possible but rare in practice.
Treaty basis
European Convention on Extradition (ECE)
The European Convention on Extradition of 1957 is the most important multilateral extradition treaty in the European area. It applies not only to EU member states, but to all member states of the Council of Europe — including Turkey, Georgia, Ukraine and other states. The Convention contains rules on the conditions for extradition, dual criminality, political offenses and the rule of specialty.
The Convention is supplemented by several additional protocols which, among other things, govern extradition for fiscal offenses and judgments in absentia.
Bilateral extradition treaties
Germany maintains bilateral extradition treaties with numerous states that supplement or modify the general regime of the IRG. The treaties with the USA, Switzerland, Australia and Canada are particularly significant. These treaties often lay down differing conditions as to the minimum penalty, dual criminality and the surrender of a state's own nationals.
TCA — extradition with the United Kingdom
Since Brexit, the United Kingdom is no longer an EU member state and the European Arrest Warrant no longer applies. Since 1 January 2021, extradition relations have been governed by the Trade and Cooperation Agreement (TCA). The TCA contains a self-standing surrender system that resembles the EAW but differs in essential respects — in particular as to the protection of a state's own nationals and the review of dual criminality.
Course of proceedings in extradition to a non-EU state
Proceedings against an international arrest warrant from a non-EU state are likewise divided into three essential phases — from the arrest, through the admissibility review, to the granting decision:
Arrest and extradition detention
The arrest takes place as in the EAW procedure, often on the basis of an Interpol alert (Red Notice) or an SIS alert. The requested person is brought before the judge and the Higher Regional Court (Oberlandesgericht, OLG) orders extradition detention. In dealings with non-EU states the deadlines are often longer than under the EAW, because the diplomatic channel has to be observed.
Admissibility review
The Higher Regional Court reviews the admissibility of the extradition on the basis of Sections 2–42 IRG and the relevant extradition treaty. In addition to the general bars (lack of dual criminality, political offense, statute of limitations, ne bis in idem), further aspects come into play in extraditions to non-EU states:
- Death penalty (Section 8 IRG) — extradition only against a binding assurance that the death penalty will not be imposed or carried out.
- Diplomatic assurances — in the case of states with a doubtful human-rights record, the Higher Regional Court can make extradition subject to conditions, for example as to detention conditions, consular access or visiting rights.
- Section 73 IRG — ordre public — general clause: no extradition where it would breach essential principles of the German legal order.
- Human-rights limits — Article 3 ECHR (prohibition of torture), Article 6 ECHR (fair trial), systemic rule-of-law deficiencies.
Granting decision
The granting decision is taken by the Federal Office of Justice (Bundesamt für Justiz, BfJ) (Section 74 IRG), in politically sensitive cases in agreement with the Federal Foreign Office. The granting decision is a discretionary decision in which foreign-policy and security-policy considerations play a role.
Protection of German citizens
Article 16(2), first sentence, of the Basic Law prohibits the extradition of German citizens as a matter of principle. This bar on extradition applies without exception in dealings with non-EU states — in contrast to dealings within the EU, where Article 16(2), second sentence, of the Basic Law allows exceptions. German citizens therefore cannot be extradited to the USA, Turkey, Russia or other non-EU states.
In such cases, however, criminal prosecution or the enforcement of a sentence can be taken over under German law (Sections 48 ff. IRG), which constitutes a de facto alternative to extradition.
Abusive extradition requests
A particular problem is posed by extradition requests that are made for political motives. Authoritarian states increasingly use the instrument of international wanted alerts and extradition to persecute political opponents, dissidents, journalists or business people. In such cases the defense is especially demanding and requires, alongside legal expertise, knowledge of the political and human-rights conditions in the requesting state.
I have extensive experience in defending against politically motivated extradition requests — both in the proceedings before the Higher Regional Court and in parallel proceedings before the Commission for the Control of INTERPOL's Files (CCF) and the Federal Constitutional Court.
My defense
Extraditions to non-EU states require particular care: the human-rights situation in the destination state, the credibility of diplomatic assurances and the political dimension of the proceedings must all be examined carefully. For over 20 years I have defended against international arrest warrants and extradition requests — with experience before all German Higher Regional Courts and the Federal Constitutional Court (BVerfG).