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I just watched with the greatest anger the following video about an unrepentant Nazi war criminal who has become the subject of considerable Neo Nazi worship. YouTube Link

As explained therein, the Germans can not prosecute him, because he can not be convicted twice for the same crime. He was convicted in France in 1949, but could not be extradited. The crime has since come under the statute of limitations in French law. The video says extradition was unstatthaft.

I want to know, as precisely as possible, on what law this inability to extradite was based and when the law was in force. I did some googling for „Auslieferung unstatthaft“, but found nothing.

Edit: The answers below explain very well, why he cannot be extradited now (this is my fault because in the comments I tried to argue there should be a provision for those cases) but I have not yet understood why he wasn’t extradited in 1949 („Auslieferung unstatthaft“).


[TLDR/tangent: the argument I am trying to make in the comments, but which doesn’t change the facts here is that non-extradition in 1949 creates the prerequisite for the french verdict to expire. Current law then uses the French verdict as an (understandable) reason for not extraditing, but overlooks the fact that the verdict was rendered moot by non-extradition. This strikes me as a completely predictable loop hole, easy to close by something like this: extradition can not be denied based upon a verdict that was rendered moot by non-extradition...]

  • Could you provide a translation of the "unstatthaft"? – hszmv May 16 at 13:44
  • @hszmv it means inadmissible, but for the specific meaning in legal contexts someone else might have a better answer – Ludi May 16 at 13:46
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    My answer explains. Successful Extradition requires that the subject of a request be able to stand trial in the country the request was made too for the same crimes. – hszmv May 16 at 13:58
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The most important rule for an extradition from Germany is this: If the role of the countries were reversed, would the person be convicted in Germany according to German law? You say the link claims that he couldn't be convicted now, because he would have been convicted twice for the same crime. So he wouldn't be convicted in Germany if the roles of the countries were reversed, therefore no extradition.

(The next important rule is this: There must be enough evidence that the person would be prosecuted in Germany, not necessarily convicted. You also need to convince the court that the accused will get a fair trial when extradited, that there will be no cruel or unusual punishment, including death sentence, and lastly there is no extradition for small crimes when the extradition plus having to appear in a foreign court can be considered worse punishment than the actual punishment for the crime. All these irrelevant in this case, I think).

"Auslieferung unstatthaft" just means "extradition inadmissible" or "extradition illegal".

PS. Ludl asked "shouldn't there be some law that if someone cannot be extradited from Germany because of extradition law, they can still be prosecuted in Germany". That would be completely unnecessary. Let's say one US citizen murders another one in Germany, the USA asks for extradition (they wouldn't, because it is a German matter, but they could ask of course), and Germany rightfully refuses. Then since it is a murder on German ground, it will be prosecuted in Germany. It would be absurd to think that a failed extradition request could protect a murderer.

  • Does it mean they could have extradited him for trial, before he was convicted, but can’t now?! How exactly does one arrive at the legally relevant reverse scenario? If we reverse fully enough, it means a person helps French people commit murder in Germany. Surely they would be convicted in Germany! – Ludi Dec 23 '18 at 13:58
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    If a person helps French people commit murder in Germany, and that person has been convicted in Germany already, then they won't be convicted in Germany again. – gnasher729 Dec 23 '18 at 15:12
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    I would like to add that AFAIK Germany will not extradite if the person in question could be facing the death penalty. – bytepusher Dec 23 '18 at 17:03
  • @gnasher729 I see! So, is this the full degree of sophistication that our legal system can muster? The fact that non extradition renders the conviction moot can not be taken into account!? – Ludi Dec 23 '18 at 19:26
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    What do you mean by "full degree of sophistication"? There are laws about extradition. Any judge will apply the laws, and not try to use some degree of sophistication to go around the law. That's what you would expect from any judge. Sometimes the result is not to your liking. – gnasher729 Dec 23 '18 at 23:35
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Extradition

Most European continental countries do not permit their citizens to be extradited, based mostly on Roman law.

In Germany this provision was introduced into the constitution in 1919 §12(3) and later defined in 1949 §16(2) Grundgesetz.

Before that it was defined in the §9 Strafgesetzbuch 1872 (penal code). §4(3) regulated how a German can be charged for crimes committed outside the country.

The 1794 and 1851 Prussian code laws contained similar provisions.

  • So the reason for not extraditing in 1949 was that GG §16(2) generally forbade it? – Ludi May 16 at 14:25
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    Yes. Since 1851 the rules state (loosly translated from memory) : the person must be charded if it is crime under prussian/german law and the they have not been convicted with sentance served. §4 Strafgesetzbuch 1851. The sad truth is, that in the 1950's this was not always done. – Mark Johnson May 16 at 15:01
  • Today this now slightly different. Within the EU, a German may extradited but only on the condition that when sentenced, the time must be served in Germany. – Mark Johnson May 16 at 15:13
  • I have just watch the video. The final statement that they 'would charge if not...' that the could have charged him in 1949. So either they didn't want to or the French didn't ask. Considering that the French were an occupation power at the time (until 1955), why didn't they just arrest him and take him back. The next question not clarified in the video, did anybody know where he was in 1949? – Mark Johnson May 16 at 15:45
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Most extradition treaties are written so that extradition can be denied if crime is not compatible with the requested countries laws. For example, the U.S. and Canada have similar laws and legal systems that a person who is charged with Murder by the U.S. should be quick for Canada to Extradite... However, the U.S. still has the Death Penalty in many states and in the Federal Courts. If the accused is being extradicted for a crime that could be a Death Penalty offense, they can refuse because the punishment is greater in the U.S. than in Canada (This solution is that the the U.S. Prosecutor promises not to seek the Death Penalty... most states require the Prosecutor to make the fact that they want the Death Penalty known formally and well before the trial there are certain circumstances the trial needs to put in place...).

In the case you have, because the Statute of Limitations for the crime has expired, France would not consider the figure as elligible to stand trial for a similar crime in Germany and since they would not arrest him, they cannot arrest him for Germany.

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