Extradition to the United States is governed by the Extradition Treaty of June 20, 1978, between the Federal Republic of Germany and the United States of America, as amended by the Supplementary Agreement of October 21, 1986, and the Second Supplementary Agreement to the Extradition Treaty of April 18, 2006.

German Criminal Defense Attorney on Extradition to the U.S.

In fact, very few people are extradited from Germany to the U.S. I had a case in which my client was not extradited because he would have faced an unbearably harsh sentence in the U.S. In all U.S. cases, there is a set of grounds for refusing extradition that must always be considered. I had another case where it was not clear from the extradition documents received what sentence the person sought would actually face in the U.S. if extradited. However, the relevant criminal provisions sometimes indicate that “a prison sentence of at least 20 years up to life imprisonment may be imposed.”

The fact that an unbearably harsh sentence facing a person in the United States can lead to a prohibition on extradition in Germany follows from the principle of proportionality applicable in Germany, which is one of the indispensable constitutional principles in Germany. In connection with an intolerably harsh sentence, the specific circumstances of sentence enforcement, prison conditions, and sentence suspension applicable in the individual case must also be taken into account, meaning that the investigation in the extradition proceedings would have to cover these circumstances as well. This applies in particular in relation to the United States.

The conditions of detention facing the individual in the United States may also preclude the admissibility of extradition. Conditions of detention are of extraordinary importance in extradition proceedings with the United States, which is why the specific detention facilities envisaged must also be investigated. Amnesty International has long classified the conditions in various U.S. detention facilities as violations of human rights.

German Criminal Defense Attorney on Obstacles to Extradition to the U.S.

It is well established in the case law of the Federal Constitutional Court and the Higher Regional Courts that, in the case of U.S. extradition requests, compliance with the principle of specialty is generally problematic and requires the obtaining of assurances. Under Article 22 of the Germany-U.S. Extradition Treaty, a person extradited under this treaty may not, as a general rule, be prosecuted for another criminal offense committed prior to the surrender. However, the provisions of the Germany-U.S. Extradition Treaty do not cover the full scope of the principle of specialty. Unconditional compliance with the principle of specialty remains required. If unconditional compliance with the principle of specialty is not guaranteed in the requesting state, extradition violates the fundamental rights of the person sought under Article 2, Paragraph 2, and Article 2, Paragraph 1, in conjunction with Article 25 of the Basic Law. 

For this reason, the Federal Constitutional Court has concluded that the Higher Regional Courts may no longer automatically assume that the United States will comply with the principle of speciality.

Under the Germany-U.S. Extradition Treaty (AuslV D-USA), extradition for fiscal offenses is also possible. The extradition of German nationals to the United States is not permitted.

Extradition requests are transmitted through diplomatic channels. If, in a specific case, extradition to the United States appears possible within a reasonable period of time, provisional extradition detention may be ordered in Germany against the person sought.

Extradition Treaty with the United States of America (USA)

Among the requirements for extradition under the Extradition Treaty between Germany and the United States of America (AuslV D-USA) is, in particular, that the conduct of the person sought underlying the extradition request must be punishable under the laws of both states and constitute a serious offense. Dual criminality may encompass offenses involving participation in an organization whose objectives and activities include the commission of extraditable offenses (Art. 2(1), third sentence, AuslV). Examples cited include the formation of a criminal organization under German law and participation in an organization involved in organized crime under U.S. law.