Lawyer in extradition detention in Hamburg

In addition to pre-trial detainees, the Hamburg Remand Prison also holds people for whom an extradition warrant has been issued. Extradition detention is a special form of detention ordered to ensure the extradition of a person to another state. It serves to prevent the person from evading extradition proceedings if an extradition request has been made against them. Extradition refers to the surrender of a person by one state to another in order to prosecute (criminal prosecution) or punish (punishment) them for a crime.

In Germany, foreign citizens can be extradited or surrendered to other countries under certain conditions. The exact definition depends on whether the other country is a member of the European Union. Extradition of one's own citizens to a state that is not part of the EU is prohibited under Article 16, Paragraph 2, Sentence 1 of the Basic Law (Grundgesetz). This means that Germany does not extradite its own citizens; instead, the German state generally conducts the prosecution itself.

Extradition proceedings

The extradition process generally begins with a written extradition request from the requesting state. Within the European Union, cooperation is facilitated by a European arrest warrant.

Federal Court of Justice, decision of 8 July 2025 (case no. 3 StR 192/25) on the requirements for a European arrest warrant for serial offenders:

In its decision of July 8, 2025, the Federal Court of Justice ruled that, in cases of serial offenses, the requirements for the description of the facts in a European arrest warrant are generally lower than those for a domestic arrest warrant or indictment. In cases of a large number of similar offenses, it is sufficient for the European arrest warrant to contain a description of the overall period of the offense, the locations of the offenses, the structures of the personnel group and the involvement of the person concerned in these, the modus operandi, and the number of serial offenses, along with a meaningful exemplary description of individual offenses.

An extradition procedure can be divided into the phase of admissibility review on the one hand and the approval decision on the other.

Admissibility check: The Higher Regional Court (OLG) – in Hamburg, the Hanseatic Higher Regional Court (HansOLG) – examines whether the legal requirements for extradition are met. The main questions are whether the submitted documents are sufficient, whether the crime in question is recognized in Germany, and whether there are any legal obstacles such as double jeopardy, the statute of limitations, or political protection. This procedure is not the actual examination of the offense, but rather the determination of whether extradition is even permissible.
Approval decision: After a successful admissibility review, the competent authority – the judicial authority – decides whether to grant extradition. If approved, the person is handed over to the foreign state; otherwise, the request is rejected.

Before the decision is made, the person to be extradited – the so-called prosecuted person – can inspect the files and legally defend themselves against extradition. Because the entire process can take a long time, however, extradition detention is ordered to ensure extradition, i.e., to prevent the person to be extradited from evading extradition. An international arrest warrant may already be in place, or a provisional arrest may have taken place. The entire process is governed by time limits; for example, a decision on the admissibility of extradition should generally be made within 60 days of the arrest by the Higher Regional Court, or in Hamburg, the Hanseatic Higher Regional Court.

If extradition is granted, the person being pursued is then handed over to the authorities of the state that requested extradition. Under certain circumstances, such as if a violation of fundamental rights can be asserted, it is possible to file a constitutional complaint against the extradition decision. Unfortunately, constitutional complaints rarely have a realistic prospect of success. However, filing a constitutional complaint is the only way to challenge the decision on the admissibility of extradition.

Obstacles to extradition

If an obstacle to extradition exists, extradition may not be permissible in an individual case. Obstacles to extradition are regulated by the Act on International Mutual Assistance in Criminal Matters and also arise from constitutional principles.

Extradition is not permitted in particular in the following cases:

if the person being sought is threatened with torture or inhumane treatment in the requesting state
in the event of threatened political or constitutional persecution, e.g. because of race, religion, nationality (Section 6 (2) IRG)
in the case of criminal offenses involving the violation of military duties (Section 7 IRG)
if the death penalty is threatened (§ 8 IRG)
in case of threatened double punishment (Section 9 No. 1 IRG)
if the offence is time-barred under German law (Section 9 No. 2 IRG)

The higher regional courts, which must decide on the admissibility of extradition, are responsible for investigating the matter if there are reasonable grounds to believe that an obstacle to extradition exists in a specific case. Typically, the Public Prosecutor General's Office is asked to obtain information and assurances via the judicial authority by means of a so-called verbal note to the judicial authority of the so-called requesting state.

Federal Constitutional Court, decision of 21 May 2024 (case no. 2 BvR 1684/23) on the courts' duty to provide information and review:

The ECtHR's case law on the duty of information and investigation of the courts dealing with a deportation order under Article 3 of the ECHR can be applied to extraditions (in this case: to Turkey). It is incompatible with this case law to refrain from consulting an expert, given that the person concerned has already attempted suicide, by citing the possibility of psychological support in Turkey, even though the medical reports submitted support the assumption that, if the extradition is carried out, there is a real risk of a further suicide attempt during transport.

Nevertheless, in our experience, it is repeatedly necessary in extradition proceedings to explicitly draw the courts' attention to this duty to examine and clarify the facts. In particular, this duty only applies if the courts have sufficiently concrete evidence that an obstacle to extradition exists. Accordingly, it is advisable to retain experienced extradition lawyers who know what must be presented in extradition proceedings and which defense approaches are likely to be successful.

With which countries does an extradition agreement exist?

The Federal Republic of Germany has concluded international extradition agreements with numerous countries. These agreements determine the conditions under which extradition may take place.

For extraditions between member states of the European Union (EU) and Germany, there is, in particular, the European Extradition Convention of the Council of Europe from 1957 (the so-called European Extradition Convention, or EuAlÜbk for short), to which several countries have subsequently acceded. Member states of this convention include Albania, Georgia, Israel, Macedonia, Russia, Switzerland, Serbia, South Africa, and Turkey.

Stricter standards apply to third countries. Germany has concluded so-called bilateral treaties with, among others, the USA, Mexico, Canada, Kenya, and Tunisia. Extraditions are also carried out on a non-treaty basis with, for example, Egypt, Algeria, Yemen, Morocco, the Republic of Congo, Syria, and the United Arab Emirates.

Special requirements for extradition, in particular the principle of specialty

According to the principle of reciprocity (Section 5 IRG), the offence for which the person sought is to be extradited must constitute an offence punishable not only in the requesting State but also in the requested State, Section 2 IRG.

Particularly relevant is compliance with the principle of specialty pursuant to Section 11 of the International Criminal Court Act (IAG). According to this principle, extradition is only permissible if it can be guaranteed that the person being prosecuted will not be prosecuted in the requesting state for offenses other than those for which extradition was granted without the consent of the requested state. Furthermore, the person being prosecuted may not be extradited or deported to a third state without consent.

Federal Court of Justice, decision of 5 March 2025 (case no. 1 StR 25/25) on the principle of specialty:

If the person being prosecuted was extradited not in the criminal case at issue, but on the basis of a European arrest warrant for the execution of a custodial sentence that has become final in other proceedings, and has not waived compliance with the principle of specialty, the violation of the principle of specialty does not constitute an impediment to the detention proceedings – unlike in extradition agreements concluded with states that are not members of the European Union. Instead, the violation of a European arrest warrant merely constitutes an impediment to enforcement and a prohibition on measures restricting liberty. This means that a final custodial sentence may not be executed until the violation of the principle of specialty has been remedied.

Federal Court of Justice, decision of 26 June 2024 (case no. 1 StR 10/24) on the violation of the principle of specialty by including a previous conviction in a total sentence:

In its decision of June 26, 2024, the Federal Court of Justice ruled that offenses from previous convictions that are not subject to extradition may not be included in a subsequent aggregate sentence with the offenses underlying the extradition because an impediment to enforcement exists in this respect. Including them in an aggregate sentence constitutes a violation of the principle of specialty. Furthermore, the Federal Court of Justice ruled that, in the absence of other indications, express consent to surrender for the offenses listed in the European arrest warrant cannot, in principle, also be interpreted as an "express waiver" of the principle of specialty.

Higher Regional Court of Hamburg, decision of 17 August 2023 (case no. Ausl 63/22) on the principle of specialty in extradition to the USA:

In its ruling of August 17, 2023, the Hamburg Higher Regional Court (HansOLG) found that an attempt to prosecute a person for other offenses or offenses that would result in aggravated offenses violated the prohibition of punishment enshrined in Article 22 of the German-American Extradition Treaty. Since the United States would likely violate this principle in the present case, the Hamburg Higher Regional Court denied extradition. The case involved allegations of violations of US embargoes and smuggling.

Extradition detention

The ordering of extradition detention under Section 15 of the International Criminal Law Act (IRG) serves to secure an extradition (which will be imminent later, i.e., once a decision has been made on the admissibility and approval of extradition). For this purpose, an extradition warrant is issued. This is usually based on an already issued European arrest warrant or an international arrest warrant from Interpol (so-called Red Notice).

In the vast majority of cases, an extradition arrest warrant is based on the objective of preventing the person being prosecuted from evading extradition during the ongoing proceedings (risk of absconding), Section 15 (1) No. 1 of the International Criminal Court Act (IRG). Furthermore, extradition arrest can also be ordered under Section 15 (1) No. 2 of the IRG if, based on certain facts, there is a strong suspicion that the person being prosecuted will hinder the investigation of the truth in extradition proceedings or in foreign proceedings (risk of obfuscation of evidence).

In Hamburg, the Hamburg Pre-trial Detention Center (Holstenglacis 3-5) not only houses pre-trial detainees but also people against whom such an extradition warrant has been issued. Legal action against an extradition warrant is possible. It is conceivable – with appropriate, experienced defense attorneys in extradition proceedings – to have the extradition warrant revoked or at least suspended.

Credit for extradition detention abroad

If someone is convicted of a crime in Germany, for example, in Hamburg, and was previously held in custody abroad pending extradition, this extradition detention can be taken into account. This particularly applies to cases in which the subsequently convicted person was initially on the run and then caught abroad. Before being transferred to Germany, they can spend up to several months in foreign detention facilities.

The crediting of extradition detention served abroad is regulated by Section 51, Paragraph 4, Sentence 2 of the German Criminal Code. According to this, the court determines the standard for crediting at its discretion. In principle, extradition detention served abroad is (only) credited at a 1:1 ratio toward the domestic prison sentence. A preferential crediting, for example, at a 2:1 or even 3:1 ratio, is only considered if severe, demonstrably inhumane detention conditions existed abroad. The relevant circumstances must be specifically presented, which is why it is advisable to seek the expert assistance of experienced attorneys in criminal and extradition law for your defense.

Federal Court of Justice, decision of 10 May 2025 (case no. 5 StR 103/25) on the crediting of extradition detention suffered in Hungary:

In its decision of May 10, 2025, the Federal Court of Justice stated that the operative part of the judgment must specify the standard for calculating the extradition detention served, as the decision regarding the standard for calculating the extradition detention has a constitutive effect. If the defendant was held in extradition detention in Hungary for the offense in question, this must be credited to any imposed prison sentence at a ratio of 1:1.

Federal Court of Justice, decision of 22 October 2024 (case no. 5 StR 377/24) on the crediting of extradition detention unrelated to the proceedings:

In its decision of October 22, 2024, the Federal Court of Justice clarified that even detention pending extradition that is formally unrelated to the proceedings must be taken into account if it has had a beneficial effect on the criminal proceedings in question, thus forming a so-called functional procedural unit. In the case at hand, the defendant was detained pending extradition in Latvia for a case that was later included in the conviction in Germany.

Criminal defense in extradition proceedings

As a person being pursued in extradition proceedings, you have the right to seek legal assistance at any time, pursuant to Section 40 (1) of the International Criminal Court Act (IAG). If the person being pursued is in extradition custody, legal assistance is even required under Section 40 (2) of the IRG, meaning the court must assign a lawyer. Due to the many special features of extradition proceedings, it is advisable to always consult a lawyer. This is particularly true in the case of extradition custody, i.e., if an extradition warrant has already been issued, or in the case of a provisional arrest pursuant to a European Arrest Warrant or an Interpol Red Notice. As experienced lawyers in extradition law, we are happy to assist you at an early stage – especially in the case of extradition custody in Hamburg or if you are affected by an extradition warrant issued by the Hanseatic Higher Regional Court.