Extradition to India is generally possible. Extradition transactions under the German-Indian extradition treaty of 21 June 2001 (BGBl. 2003 II p. 1634, 1635; 2004 II p. 787) also include the possibility of ordering provisional extradition detention on the basis of an Interpol red notice even before an official request for extradition from India has arrived here.

India is known for drastic punishments

In 2016, the German Federal Constitutional Court referred to its earlier case law on India, which had already attracted attention in the past because of drastically harsh penalties. The German Federal Constitutional Court emphasised the starting point, namely that according to § 73 1 IRG any extradition from Germany is inadmissible which contradicts the requirement of proportionality, because the penalty which threatens in the requesting state seems unbearably harsh and inappropriate (cf. BVerfGE 50, 205, 214 f.; 75, 1, 16; 113, 154, 162) or cruel, inhuman or degrading (cf. BVerfGE 75, 1, 16 f.; 108, 129, 136 f.).

But according to the case-law of the German Federal Constitutional Court, the values of foreign legal systems and foreign legal views must also be respected. In this context, the German Federal Constitutional Court referred to an earlier decision on extzradition to India, where it did not oppose extradition that the person concerned was threatened with life imprisonment for fraud offences (cf. BVerfGE 108, 129, 143 f.).

The German Federal Constitutional Court has ruled on the danger of torture in the Indian criminal justice system (BVerfG, decision of 24 June 2005). 2003 - 2 BvR 685/03), that German courts in extradition proceedings must "only" examine whether extradition is in accordance with the provisions of Art. 25 German Basic Law a binding minimum standards under international law in the Federal Republic of Germany and are compatible with the indispensable constitutional principles of their public order (cf. BVerfGE 63, 332; BVerfGE 75, 1).

lawyer on extradition to India and impending torture

The German Federal Constitutional Court expressly did not object to the previous decision of the Higher Regional Court of Munich and declared: "In its decision of 30 April 2003, the Higher Regional Court did not cast any doubt on the fact that torture is used in India in part as a method of questioning or as a means of extortion. In its assessment that the complainant nevertheless does not face a concrete risk of torture, it relied on the fact that human rights violations by state bodies did occur, but that they would be prosecuted to a greater extent. This is in line with the Federal Foreign Office's assessment in its "India" management report. The court also pointed out that torture is prohibited by law in India and is not specifically promoted by the state, but that the Indian state punishes torturers and has recently launched a campaign to raise awareness among its security forces. This also finds its basis in the situation report of the Federal Foreign Office. Already these points of view make the OLG's assessment seem comprehensible, simply because torture in India is a method of interrogation frequently used by the police or a means of blackmail, the complainant is not threatened with a concrete danger of torture with considerable probability, according to which India as a whole is not a state in which there is a constant practice of comprehensive or systematic violations of human rights..... „.

This decision of the Federal Constitutional Court on the extradition relevance of the danger of torture in Indian criminal justice is more than 10 years old and it remains to be hoped that the Federal Constitutional Court would also decide otherwise in the event of a new submission.

"There is the world. And there is India."

Journalist Jan De Cock has reported from prisons around the world and was also in Tihar Prison in New Delhi, known as South Asia's largest prison, designed for 3,700 prisoners, regularly occupied by approximately 12,000 prisoners. Despite the misery in Indian prisons, ambitious rehabilitation programmes are reported. Amnesty International and other NGOs regularly report human rights violations in India.