On September 4th, 2007, German authorities apprehended Adem Yilmaz, also known as Ebu Talha, in addition to two other members of an Islamic Jihad Union (IJU) terrorist cell. The trio had plotted bombings of public locations and American military facilities in Germany, including Ramstein Air Base, and had attained materials to fabricate explosives equating to 550 kilograms of dynamite. On March 4th, 2010, the Higher Regional Court of Dusseldorf ruled that Yilmaz was guilty of being a member of a terrorist organization abroad, plotting murder, detonation of explosives, and forcing constitutional organs, and sentenced him to 11 years in prison. The presiding judge declared that the case had “illustrated with alarming clarity the extent to which young people consumed by hatred, misled and entranced by distorted concepts of jihad, are willing and able to commit.”
On October 27th, 2008, the United Nations Security Council Al-Qaida Sanctions Committee recognized Adem Yilmaz as an associate of the IJU group connected to Al-Qaida, Usama bin Laden and the Taliban in line with Security Council resolution 1822 (2008).
In 2015, the U.S. federal prosecutors charged Adem Yilmaz in New York’s Southern District Court with seven counts, including alleged involvement in attacks against American personnel along the Pakistan-Afghanistan border in 2006, and assisting a terrorist organization. He was also claimed to have given counsel and direction to someone implicated in a 2008 suicide bombing that took the lives of two U.S. soldiers, and harmed at least 11 others. In 2016, the U.S. sought Yilmaz’s extradition under the Treaty between the Federal Republic of Germany and the United States of America Concerning Extradition. When his prison term came to an end in 2018, he was kept in custody awaiting a ruling on the U.S. extradition request.
The Frankfurt am Main Higher Regional Court, responsible for handling extradition requests, issued a detention order for Yilmaz in July 2017, but limited it to three offences. As for the other counts of the indictment, the Court found extraditio
n to be inadmissible due to the principle of double jeopardy, which prohibits someone from being prosecuted twice for the same offence. The Court further stated that the judgment of the Dusseldorf Higher Regional Court, including the sentencing for being a member of a foreign terrorist organization, already covered all the other offences. Moreover, the Court referenced the Federal Constitutional Court’s case-law regarding the principle of speciality, which states that somebody who has been extradited can only be tried for offences which extradition was sought, and not for any other pre-extradition offences. On 16 February 2018, the US authorities promised to adhere to the principle of speciality.
On the 18th of May 2018, the Frankfurt Public Prosecutor’s Office, which was acting as a mediator between the U.S. authorities and the Court, asked the court to allow extradition of Adem Yilmaz for the three offences under the first count of the indictment, but to forbid extradition for the other offences.
In August 2018, the Frankfurt am Main Higher Regional Court sought further information from the U.S. on a defendant’s right to use the rule of speciality in criminal proceedings, as well as what possibilities there were for regaining freedom if sentenced to life in prison. The U.S. Department of Justice notified the court via a diplomatic note on November 29th, 2018, containing an extensive letter containing their arguments for the extradition of Yilmaz. On December 11th, 2018, the response was submitted to the court and it read, in part, as follows:
Yilmaz will not be able to contest any criminal proceedings or appeal his conviction in the United States if the extradition is allowed to take place and the US does not comply with the extradition treaty between the two countries, of which Yilmaz cannot take advantage of.
The US stands by its pledge to meet its commitments under the extradition agreement, including the speciality principle.
On the 4th of January 2019, the Frankfurt Public Prosecutor’s Office made an announcement in support of the U.S. Department of Justice’s stance that there was no evidence of any breach of their assurance to act according to the rule of speciality. This announcement was seen as a demonstration of the seriousness with which the U.S. authorities were taking the situation.
The Court was not persuaded by the assurances presented to it, and in its order of 6 July 2017, concluded that extradition on six of the seven counts of the indictment was not permissible due to the double jeopardy principle. With regard to the remaining three offences, the Court determined that extradition for the first count was inadmissible due to a violation of the principle of speciality. It was deemed that, in the worst case scenario, Yilmaz would be reliant on Germany officially protesting the breach of the rule of speciality, which was incompatible with the interpretation of the German Federal Constitutional Court. Thus, on 28 January 2019, the request for extradition was denied and Yilmaz was ordered to be released. The Court’s spokesperson stated that:
It is not permissible to impose a second punishment for the same crime. We only enforce extradition if it is apparent that the accused will not face double jeopardy.
An extradition could only have happened if the Americans declared that the charges would not include any offences that had already been dealt with.
The Senate decided the extradition was not valid since it could not be ascertained that the criteria set by the Federal Constitutional Court would be fulfilled. The defendant should be able to appeal to the principle of speciality in the United States using his own prerogatives.
The ruling by the Court on the admissibility of extradition could not be challenged. Yet, the Court had the capacity to modify its initial decision in the event that any new facts or evidence came to light after the first decision was made. In response, the U.S. authorities provided additional evidence and guarantees in an effort to alleviate the Court’s doubts. On Friday 1 February 2019, the Frankfurt Public Prosecutor’s Office lodged an application to review the extradition decision as well as a request for detention to ensure the extradition process. This submission was formally received by the Court on Monday 4 February 2019.
Following the completion of his jail term, Adem Yilmaz was scheduled for deportation. In Germany, the Federal Government is unable to intervene in such matters which are decided on a state level. The security services viewed Yilmaz as a potential risk as they believed he could be a “ticking time bomb” and could possibly commit another terrorist attack at any point. Consequently, the State of Hesse Immigration Office went to the Frankfurt am Main County Court on 29 January 2019 to obtain an order that would allow the detainment of Adem Yilmaz until deportation. As the Turkish authorities had issued the necessary documents, the Hesse state officials deported Yilmaz to Turkey on the 5th of February in the early hours of the day, before the Frankfurt Higher Regional Court had the opportunity to review the extradition to the United States. By then, the court had yet to acquire the case papers. The Frankfurt Public Prosecutor’s Office made no attempt to stop the deportation as, without a valid custody order, Yilmaz would have had to be released from prison – a situation the authorities were keen to avoid.
When it became known that Adem Yilmaz had been deported to Turkey, the American Ambassador to Germany, Richard Grenell, declared:
We are appalled at Germany’s resolution to expel the dangerous militant Adem Yilmaz to Turkey early today, disregarding our application to extradite him to the United States. Yilmaz is responsible for the demise of U.S. service members. This refusal to extradite him to the U.S. goes against the conditions and spirit of our extradition agreement.
John Sullivan, Deputy U.S. Secretary of State, held a meeting with German Foreign Minister Heiko Maas in Washington on 6 February 2019 to express the American government’s discontent with the extradition of Adem Yilmaz to Turkey. The encounter was referred to in diplomatic terms as “probably [not] the happiest meeting ever.” The U.S. side was notably exasperated, since the court responsible for Yilmaz’s deportation had not been enlightened on the letter of November 2018 from the U.S. Department of Justice, which presented the U.S. argument for extradition. At the meeting, the German party clarified that:
There was no way the Federal Government could affect the court’s conclusion. Thus, a security decision had to be issued. It is probable that the individual would have been released yesterday because the US had not provided the documents the court had solicited nearly a year ago.
A statement released by Acting U.S. Attorney General Matthew Whitaker, not long after the discussion between Sullivan and Maas, was highly critical and stated, in part:
We are extremely displeased with Germany’s resolution to extradite the dangerous terrorist Adem Yilmaz to Turkey instead of the United States, where he could have been held accountable for his part in the killing of two American servicemen.
By putting him on a plane to Turkey, the German government made it so he would evade justice.
The German authorities have declined to accept any liability for not extraditing him to the United States, have disregarded their treaty commitments, and have weakened the rule of law.
At the Frankfurt am Main Higher Regional Court, Attorney General Whitaker accused them of altering the extradition treaty between the U.S. and Germany. Robert Palladino, the Deputy Spokesperson for the U.S. Department of State, echoed this sentiment during the following day’s press briefing.
Deputy Secretary Sullivan expressed the U.S.’s disappointment in Germany’s refusal to extradite Yilmaz, a convicted terrorist being charged with serious crimes against the United States. This individual is responsible for the 2008 suicide bombing in Afghanistan which took the lives of two American service members and injured 11 others.
Despite having been indicted by the Southern District of New York on terrorism charges, Germany instead opted to deport him to Turkey instead of extraditing him to the United States. This is contrary to the obligations of the Bilateral Extradition Treaty between the United States and Germany.
The U.S. authorities’ frustration may have been brought on by their lack of knowledge of the German legal and federal judicial system. The extradition and deportation proceedings were both held in different courts. Concerning Adam Yilmaz, the trial was conducted at the federal state of Hesse’s court, and not the German Federal Government. German Foreign Office officials expressed that “The result is not what we would have liked, but we have to abide by the law” and “We don’t agree with the final decision, but it is in the court’s hands.”
U.S. authorities declared that Germany failed to honor its agreements according to the Extradition Treaty between the two countries. Article 1(1) of the treaty suggests that both countries must give up individuals who are charged with a crime by the other side. Nevertheless, this obligation comes with certain conditions as stated in the Treaty. Notably, Article 8 states:
The extradition of an individual shall not be granted if they have already been tried and either discharged or been penalized with a definitive penalty by the relevant authorities of the state in which the extradition is sought for the alleged offense.
The Frankfurt am Main Higher Regional Court determined that Adem Yilmaz’s conviction for being a member of a foreign terrorist group had already addressed the offences the United States asked for extradition for in counts two to seven of the indictment, thus Germany was justified in refusing extradition for those offenses due to double jeopardy.
Article 22(1) of the Extradition Treaty is also significant and it states:
No one extradited under this Treaty may be punished for any offence committed before their extradition, excluding the case for which they were extradited, except in these conditions:
(a) When the extraditing State allows it. […]
The German Constitutional Court has interpreted the Treaty’s Article 22(1) that a person on trial must possess the capacity to assert the rule of speciality when in the United States.
In March 2016, the German Constitutional Court put an end to the extradition of a person to the United States, deeming it to be at odds with the minimal standard under public international law. Article 25 of the Basic Law of Germany requires German courts to assess whether the requesting State complies with the principle of specialty. If the principle of specialty is not observed, then the extradition would lead to a serious infringement of the fundamental rights in Article 2(2) and Article 2(1) of the Basic Law. The court’s justification for the ruling was adequately stated in the following words:
According to the settled case law of the Federal Constitutional Court, German courts must assess if an extradition violates the inalienable principles of the Constitution or the inalienable core of fundamental rights protection. This is especially true for extradition requests from States that are not members of the European Union. Such requests must abide by the minimum standard under public international law set by Article 25 of the Basic Law. Article 25 also requires that domestic law not contravene international law and that authorities and courts must not partake in activities that violate the general rules of international law. This is also reflected in section 73 of the Act on International Cooperation in Criminal Matters.
This applies to extradition proceedings with the United States of America as per Article 27 of the Germany-U.S. Extradition Treaty.
In general, the requesting State is to be trusted with regards to the observance of fundamental rights protection and public international law. However, this trust can be challenged if there are concrete indications that the inalienable principles of the Constitution or the inalienable core of fundamental rights protection or the binding international minimum standard, as set by Article 25 of the Basic Law, will not be adhered to. In such a case, the court deciding on the extradition must investigate on a case-by-case basis whether these limits are respected.
The Frankfurt am Main Higher Regional Court has not met the constitutional requirements in examining the principle of speciality, as enshrined in Article 22 of the Germany-U.S. Extradition Treaty. This principle is part of the general rules of international law, codified in section 11 of the Act on International Cooperation in Criminal Matters and Article 22 of the Germany-U.S. Extradition Treaty. In accordance with Article 25 of the Basic Law, German courts are obligated to verify if the requesting State respects this principle.
In light of this, the Federal Constitutional Court examined the potential implications for the extradition relations between Germany and the United States of the ruling in United States v. Suarez by the U.S. Court of Appeals for the Second Circuit in 2015. The American court had indicated that a person extradited is deprived of the right to question the requesting State’s adherence to the principle of speciality in the absence of an official complaint by the extraditing State. Taking into consideration Suraez, the Federal Constitutional Court was uncertain as to whether the United States was respecting the principle of speciality. Thus, the Federal Constitutional Court concluded that:
“[48] As a result of the Suarez decision, it must be assumed that an individual extradited could only defend against a breach of the principle of speciality in the most serious of circumstances, which are prohibited under German constitutional law. This should have been taken into consideration when deciding on the acceptability of extradition. The Frankfurt am Main Higher Regional Court disregarded this, thus contravening the extradited person’s rights under the second sentence of Article 2(2) [right to personal freedom] and, at the least, their rights under Article 2(1) of the Basic Law [right to general freedom of action] combined with Article 25 of the Basic Law [application and primacy of general rules of public international law].
[49] (1) The Higher Regional Court assumed correctly that the Suarez decision did not reject the observance of the principle of speciality in general. Nevertheless, the decision made it clear that the U.S. courts, mainly the Court of Appeals [for the Second Circuit], would only comply with the principle of speciality if the state to which the United States had promised to adhere to the principle – generally or in a particular case – protested the breach of it. Therefore, a thorough evaluation is needed to determine if the principle of speciality can be expected to be respected in the present circumstance. […]
[52] The requesting State’s declaration that it is obligated to observe the principle of speciality isn’t enough to assess if it is indeed following the principle. […]
[54] When assessing the observance of the principle of speciality in the context of the Suarez decision, the Higher Regional Court failed to acknowledge the importance of the second sentence of Article 2(2), or at the least of Article 2(1) of the Basic Law in combination with Article 25 of the Basic Law for the interpretation of section 73 of the Act on International Cooperation in Criminal Matters. […]
[56] When interpreting section 73 of the Act on International Cooperation in Criminal Matters the courts must consider the general rules of public international law in Article 25 of the Basic Law, including the principle of speciality. This is true even if the general rule of public international law is primarily meant to protect the person to be extradited. Article 25 of the Basic Law requires German courts and authorities to avoid giving effect within the area of application of the Basic Law to any act of non-German authorities which break general rules of public international law, and to not take part in any action of non-German authorities which violates the general rules of public international law. By turning the commands of Article 25 of the Basic Law into ordinary law, the provision is designed to protect the basic principles of the German legal system that are intended to protect the person to be extradited, as well as to preserve the objective rules of general international law which are indispensable for the German legal system. The Frankfurt am Main Higher Regional Court did not take this into account and thus interpreted section 73 of the Act on International Cooperation in Criminal Matters in a manner that goes against Article 25 of the Basic Law.
[57] 4) Applying the principles established in the Suarez decision, the United States may not abide by the principle of speciality. Allowing the extradited person to submit an application to the Federal Government to protest the violation of the principle of speciality and thus secure its observance in the criminal proceedings against the applicant is a misapprehension of extradition law and the principle of speciality. This also completely overlooks that an extradition that does not comply with extradition law often results in severe violations of the person’s rights under the second sentence of Article 2(2) or, at the least, of Article 2(1) of the Basic Law, which can no longer be opposed effectively. […]
[59] By connecting the decisions to grant extradition to particular offenses, the principle of speciality is meant to guarantee that the person extradited will only be prosecuted in the requesting State for the (specific) offenses committed prior to extradition for which the admissibility of extradition has been checked and extradition has been granted. Unless otherwise stated in a treaty, the principle of speciality implies that the requested State can make the provision of legal assistance conditional and that the requesting State may only make use of the legal assistance provided under those conditions and, mainly, the object and purpose of the legal assistance as specified by the requested State. The principle of speciality is a central principle of extradition law; it serves to guarantee the observance of the conditions and impediments of extradition (in regard to specific offenses). In order to protect the purpose of the principle of speciality, extradition may not be declared permissible unless it is guaranteed that the requesting State will observe the principle of speciality unless it
In May 2017, the Federal Constitutional Court clarified its position on the importance of the rule of speciality in extradition to the United States. The Court articulated two criteria for denying extradition: the individual to be extradited must not be able to contest a breach of the principle of speciality in the U.S. courts, and there must be strong signs of an infringement of the principle of speciality.
In general, defendants in the district courts of New York are not granted the right to challenge indictments due to any violation of the speciality principle if the extraditing State has not previously objected. This ruling has been seen by New York district courts and the Court of Appeals for the Second Circuit as a right of the requested State, not the defendant. This means that the defendant cannot put forth their own objection independently. If the extraditing State has not raised an objection to the breach of the principle of speciality, then it may be assumed to be waived. In contrast, other circuits have taken a different approach to the issue of legal standing to claim a violation of the speciality principle, resulting in a “circuit split” on the issue. Therefore, extradition requests for other parts of the United States may not be faced with the same difficulties as those in New York district courts.
The Federal Constitutional Court concluded that the defendant’s rights under the Basic Law were not adequately protected, even if the U.S. prosecutor offered to not oppose a challenge of the indictment based on the principle of speciality. Therefore, the question of standing was not something the prosecution had the authority to decide on. The most the U.S. authorities were able to promise was that the Court of Appeals “may possibly look into” such a challenge.
The Frankfurt am Main Higher Regional Court was asked to confirm if Adem Yilmaz’s extradition to the United States violated the principle of speciality. The Federal Constitutional Court argued that the U.S. authorities’ assurance that all admissible evidence would be used for the prosecution did not constitute a violation. However, the Court noted that there was a clear contrast between the offences for which extradition was sought and those for which Yilmaz was detained for extradition. As a result, the Court determined that it was necessary to guarantee Yilmaz access to appropriate legal protection to protect against any potential speciality principle violation. As the Court only allowed extradition for only three of the seven charges listed in the indictment, there was a distinct discrepancy.
When it comes to German constitutional law, the effects on the interpretation and application of the U.S.-German Extradition Treaty need to be considered. Article 8 of the Treaty expresses the double jeopardy principle, but Article 22, which is the principle of speciality, does not explicitly allow the requested State to reject extradition – particularly not if the requesting State guarantees that it will “fulfil its duties under the bilateral extradition treaty, including the rule of specialty.” The Federal Constitutional Court remarked that the process of extradition is based on mutual trust, and stated that…
The requesting State has an important stake in preserving and upholding mutual legal assistance. As a result, it will often refrain from taking any actions that could negatively impact the functioning of extradition relations. Mutual trust is only applicable when it is not challenged by evidence. This trust can be called into question if there are indications that the international minimum standards specified in Article 25 of the Basic Law may not be followed in the requesting State. This requires there to be valid reasons that suggest that the minimum international requirements might not be respected.
The Extradition Treaty between Germany and the United States, as codified in Article 22, specifies the principle of speciality as a right between the two states. However, this provision does not give the person to be extradited a third-party beneficiary right or a self-executing right of standing to challenge a potential violation in the courts of the requesting State. The German Federal Constitutional Court did not answer if the principle of speciality is meant to protect the extradited individual. Refusing to extradite only because the defendant lacked legal standing to challenge a violation of the speciality principle is contrary to the Treaty.
The Federal Constitutional Court determined that the German legal system stipulated that the defendant must be allowed to dispute any infringements of the principle of speciality. The Constitutional Court asserted that section 73 of the Act on International Cooperation in Criminal Matters legally secured this requirement. Moreover, it was relevant to extradition proceedings with the United States in accordance with Article 27 of the Germany-U.S. Extradition Treaty, which states:
Unless this Treaty stipulates otherwise, the law of the Requested State shall be relevant to provisional arrest, extradition, and transit.
The Federal Constitutional Court utilized Article 27 to transpose German constitutional law demands regarding the concept of speciality into the Extradition Treaty. Nevertheless, the savings clause about the applicable law in Article 27 only works when the Extradition Treaty does not have any other stipulation. Article 22 of the Extradition Treaty expressly controls the principle of speciality, which does not necessitate that the defendant has the standing to dispute infringements of the principle in the requesting State. The Frankfurt am Main Higher Regional Court admitted that Article 22 only creates the principle of speciality amongst the contracting nations – it does not contain any clue regarding the procedural enforcement of the principle, or the legal remedies accessible to the defendant in the requesting nation in the event of an infringement. From this void, the Court then concludes that the principle of speciality must be interpreted in line with the meaning that the German Federal Constitutional Court granted it. However, Germany’s constitutional law demands are not applicable in terms of Germany’s obligations under the Extradition Treaty. Germany cannot unilaterally impose its interpretation of the principle of speciality in Article 22 on the United States.
Adem Yilmaz’s refusal to be extradited to the US has highlighted the clash between German constitutional law and international treaty law, which is ultimately resolved in favour of the former at a domestic level. However, the US contends that by not allowing Yilmaz to challenge any violations of the speciality principle before US courts, Germany has breached the Extradition Treaty. This would mean that any failure to adhere to the treaty by German courts would render the Federal Government liable as they cannot hide behind the independence of the judiciary or the rule of law.
The German understanding of the speciality principle – as requiring legal remedies in the US – is at odds with the literal meaning of Article 22, in the context of its aims and objectives. Therefore, the US Acting Attorney General’s accusation that the German authorities have “violated their treaty obligations and [have] undermined the rule of law” is not necessarily accurate. If there were any solid proof that the US judicial or prosecutorial authorities would breach the speciality, double jeopardy or double criminality principles, the German courts would have been fully justified in denying extradition. In this particular case, however, the Higher Regional Court would have had to make that clear.
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