Yes, under certain conditions. The constitutional protection under Article 16(2) Grundgesetz does not apply to foreign nationals. Non-German citizens in Germany may be subject to extradition to the USA if the following requirements are met:

• Dual criminality: The alleged offence must be criminal under both US federal law and German law. For prosecution purposes, the maximum sentence must exceed one year’s imprisonment; for the enforcement of an existing sentence, at least six months must remain to be served.
• No political or military character: Extradition requests of a purely political or military nature are excluded.
• No double jeopardy: The person must not have been finally tried and acquitted or convicted by a German court — or, following a recent European Court of Justice ruling, by any EU member state court — for the same offence.
• No lapse of time: The offence must not be statute-barred under the applicable law.
• No parallel German proceedings: Extradition may be refused if the person is already facing prosecution in Germany for the same offence.

German courts take the conditions awaiting an extradited person seriously. The United States holds the distinction of having the largest prison population worldwide, totalling 1,230,100 inmates in 2022. Despite the substantial number of prison inmates, there are very few current reports detailing prison conditions. However, it can be noted, that American prisons differ greatly from their European counterparts, for example often lacking individual cells and instead utilizing dormitories that house more than 20 inmates. Accounts by Amnesty International also report cases of overcrowding and prolonged solitary confinement.

Furthermore, the US prison and justice system is regularly criticized for disproportionally incarcerating black Americans and imposing particularly harsh penalties for drug offences. At the end of 2022, the majority of sentenced prisoners were black (32 %), whereas the black population in America only makes up 12.1 % of the total population. In addition to that, a significant portion of all inmates, 47 %, were serving time for drug offenses as of September 30, 2021.

These systemic issues are legally relevant: where there is a real risk of inhuman or degrading treatment, German courts may refuse extradition.

The death penalty has been prohibited in Germany since 1949 and remains forbidden under the German Basic Law to this day. The second supplementary treaty to the Germany–US Extradition Treaty directly addresses this conflict: Germany may grant extradition subject to a binding assurance from the USA that the death penalty will neither be imposed nor carried out. If the US declines to provide this guarantee, Germany can refuse the extradition request entirely. Currently, 27 US states, the federal government, and the US military retain capital punishment, making this clause practically significant in a number of cases.

One of the most prominent examples of Germany refusing a US extradition request is the case of Mohammed Ali Hamadi, the lead hijacker of a 1985 aircraft hijacking in which passengers with Jewish-sounding names were held hostage and the release of 700 Muslim prisoners from Israeli custody was demanded. Hamadi was arrested in Germany in 1987 while attempting to smuggle explosives. Germany denied the US extradition request on the grounds that he would have faced capital punishment in the United States. He served a 19-year prison sentence in Germany, was paroled in 2005, and is believed to be living in Lebanon. He remains a fugitive on the US Department of Justice’s wanted list.

Our extradition and Interpol defence team at Schlun & Elseven Rechtsanwälte advises and represents clients of all nationalities confronting extradition requests from the United States. We examine every avenue for challenging admissibility – from dual criminality and human rights grounds to procedural defects and Interpol Red Notice challenges. If you or someone you know is facing extradition proceedings in Germany, do not wait. Contact us via our secure contact form for a confidential initial consultation.