Extradition of Edward Snowden from Germany?

SPIEGEL magazine reports that the German government is considering granting asylum to Edward Snowden.

They warn, however, that it might be a bad move for Snowden to actually come to Germany. The reason is that the EU has a extradition treaty with the United States in force since 2010.

So if Snowden is in Germany, he might get extradited under that Treaty.

Under Article 4 of the Treaty the offense in question would need to be punishable in both Germany and the United States.

Under German penal law, Article 353b comes to mind (Violation of Official Secrecy). However, Snowden is not a German official, so that Article is not applicable in the first place, and even if it were, the German government could decide not to authorize prosecution (Paragraph 4).

Also, under German penal law, illegal state secrets are not protected against disclosure. Article 93 Paragraph 2 says:

(2) Facts which constitute violations of the free democratic constitutional order or of international arms control agreements by virtue of having been kept secret from the treaty partners of the Federal Republic of Germany, are not state secrets.

Clearly the facts here are illegal secrets under this definition.

Therefore, it seems to be open to doubt if the acts in question here are actually crimes under German law. If anything, German citizens and the German government are better off because of Snowden’s revelations. That is at least the position the leader of the German Green party Trittin just took.

It will be interesting to see what the German government decides on this matter.


Published by kflenz

Professor at Aoyama Gakuin University, Tokyo. Author of Lenz Blog (since 2003, lenzblog.com).

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