Germany–USA Extradition Under the 1978 Treaty: The Nationality Bar, Dual Criminality, and Court Process

The Treaty on Extradition between the United States of America and the Federal Republic of Germany (Bonn, 20 June 1978) is the primary instrument governing extradition between Germany and the US. A supplementary treaty of 21 October 1986 added further offence categories including drug trafficking, and more recent supplemental arrangements have addressed specific criminal categories. The treaty uses a dual criminality standard supplemented by a schedule of extraditable offences — the conduct must both appear on the schedule and satisfy dual criminality (constituting a crime under both German and US law).

In Germany, extradition proceedings are governed domestically by the Act on International Mutual Legal Assistance in Criminal Matters (Gesetz über die internationale Rechtshilfe in Strafsachen — IRG). The competent court is the Higher Regional Court (Oberlandesgericht — OLG) of the state where the requested person is located. The OLG’s role is to determine whether the legal conditions for extradition are met: dual criminality, the applicable treaty, minimum sentence, and absence of bars. The Federal Ministry of Justice (Bundesministerium der Justiz) makes the final executive decision on surrender after the OLG authorises extradition. The Federal Ministry’s decision is subject to review by the Federal Constitutional Court (Bundesverfassungsgericht) in exceptional cases where fundamental rights are at stake.

The role of an INTERPOL Red Notice in German proceedings is to support a provisional arrest request pending the formal US extradition package. German police can arrest based on a Red Notice and hold the person while the formal request is submitted through diplomatic channels. An CCF challenge filed in parallel can seek suspension of the Notice, which reduces the risk of further INTERPOL-triggered encounters at German border points while the extradition proceedings continue. Our team has handled Germany-connected INTERPOL cases — see: Contesting an INTERPOL Arrest in Germany — a matter illustrating how identification errors in INTERPOL proceedings create wrongful detention risk.

Article 16(2) of the German Basic Law (Grundgesetz) states: “No German may be extradited to a foreign country. The law may provide otherwise for extraditions to a member state of the European Union or to an international court, provided that the rule of law is guaranteed.” The phrase “foreign country” explicitly covers the United States. This constitutional provision is absolute in its application to non-EU states: German nationals cannot be extradited to the US, regardless of the seriousness of the alleged offence or the terms of the bilateral treaty.

The 1978 treaty acknowledges this: Article 7 provides that neither party is obliged to extradite its own nationals. Germany invariably exercises this right. In practice, where a US extradition request targets a German national in Germany, the Federal Ministry of Justice refers the case to German prosecutorial authorities. The Generalbundesanwalt (Federal Public Prosecutor General) or state-level prosecutors then assess whether to initiate domestic proceedings. In some cases, German prosecutors have proceeded to trial against German nationals for conduct primarily occurring in the United States, applying the principle of active personality jurisdiction.

Compare with Italy–USA extradition, where a similar constitutional bar applies, and with UK extradition law, which permits surrender of UK nationals to the US without equivalent constitutional restriction.

Germany, Austria, and Switzerland all refuse to extradite their own nationals to the US and apply robust constitutional human rights standards. Switzerland is notable for its particularly thorough judicial process under the International Mutual Legal Assistance in Criminal Matters Act (EIMP), which has produced lengthy proceedings in several high-profile US-related cases. For all three countries, dual criminality is a genuine gating requirement: some US federal charges — particularly conspiracy and wire fraud — require careful analysis against the German, Austrian, or Swiss equivalents.

Our legal team’s approach to Germany–USA extradition cases focuses on the OLG hearing stage: dual criminality analysis (identifying whether the specific US offences charged — particularly complex financial crime or cyber charges — map to a German equivalent); the specialty rule (ensuring the charges are within the scope of the extradition request); and human rights grounds (prison conditions, potential sentence, fair trial protections in the US federal system).

For German nationals, the path is clear: the extradition request will be refused and the case referred to German prosecutors. The defence work then shifts to managing the German domestic proceedings — which may involve a German prosecutorial investigation, requests for documents from the US under MLAT, and potential prosecution in German courts applying the active personality principle.

For non-German nationals in Germany facing a US extradition request, the full treaty analysis applies. We assess dual criminality, evidence sufficiency, specialty compliance, and human rights grounds. Where a Red Notice is active, we file a simultaneous CCF challenge. Where the OLG authorises extradition, appeal to the Federal Constitutional Court on fundamental rights grounds is available in appropriate cases.

Facing a US extradition request in Germany? Contact our team for a confidential legal assessment today.