Germany

The requested person, who was sixteen years old at the time of the alleged offence, challenged an Italian decision ordering surrender to Germany under a prosecution European Arrest Warrant. The Court held that, following the 2021 reform of Italian EAW legislation, the former mandatory refusal ground concerning the existence of a differentiated punitive and detention regime for minors no longer applies, and that protection of minors in EU Member States is presumed in light of EU law unless the defence produces concrete, specific and updated evidence to the contrary. It further held that the EAW need not specify the minimum applicable sentence, the precise detention facility, the duration of pre-trial detention or other details of the foreign custodial regime where those omissions do not affect the statutory requirements for surrender. The appeal was declared inadmissible, while the surrender remained subject to the condition that any custodial sentence ultimately imposed be served in Italy.

The Italian Court of Appeal ordered the surrender of the requested person to Germany pursuant to a prosecution European Arrest Warrant concerning aggravated theft offences. The appellant argued, inter alia, that the pending challenge against the rejection of his application for international protection triggered the principle of non-refoulement, that his social and occupational ties in Italy justified execution of any future sentence in Italy, and that double criminality had not been adequately established. The Supreme Court held that non-refoulement protection based on refugee status did not prevent surrender because refugee status and subsidiary protection had both been expressly denied, notwithstanding the fact that the refusal was under appeal; it also found that the five-year residence requirement under Italian EAW law was not met. The Court further reiterated that double criminality does not require identical criminal offences in the two legal systems, but only that the conduct be punishable in both, and declared the appeal inadmissible.

The requested person was subject to two prosecutorial European Arrest Warrants issued by Germany and Austria for organised aggravated thefts, while criminal proceedings and the execution of a residual sentence were pending in Italy. The Italian Supreme Court held that the decision whether to defer surrender under Article 24 of Law No. 69/2005 requires a comparative assessment of the interests involved, taking into account factors such as the seriousness and date of the offences, the person’s custodial status, the stage and complexity of the proceedings, any final judgment, the sentence still to be served and the likely manner of its execution. It found that the Court of Appeal had adequately explained why the seriousness, organised nature and transnational dimension of the offences underlying the German and Austrian warrants outweighed the Italian interest in the domestic proceedings and sentence enforcement. The fact that the requested person was detained in Italy did not make deferral necessary, since flight risk is addressed through precautionary measures whereas the purpose of a prosecutorial EAW is to secure the person’s presence for trial.

The case concerned a prosecution European Arrest Warrant issued by the German judicial authority for burglary committed inside a private dwelling. The Court of Appeal of Perugia ordered surrender and the requested person appealed to the Italian Supreme Court. He argued, first, that the maximum time limits for precautionary measures under Article 22-bis of Law No. 69/2005 had expired, because the relevant period should have been calculated from the date of arrest. Secondly, he argued that the Court of Appeal should have requested supplementary information on the evidentiary basis of the warrant, in order to verify the legal classification of the facts and the double criminality requirement. The Supreme Court declared the appeal inadmissible. As to the time-limit argument, it held that the judgment under appeal concerned the conditions for surrender, not the requested person’s liberty status. In any event, the expiry of precautionary-measure time limits, or the delivery of the surrender decision after the statutory time limits, does not affect the validity of the surrender decision itself. As to the evidentiary argument, the Court recalled that, following Legislative Decree No. 10/2021, the absence of serious indications of guilt is no longer a ground for refusing surrender under the Italian EAW legislation. Effective judicial protection before surrender is ensured by access to the information contained in the EAW, including the nature and legal classification of the offence, the circumstances, time and place of commission, and the requested person’s degree of participation. Since the requested person did not allege that the EAW lacked such information, any challenge to the evidentiary basis or legal classification of the offence had to be raised before the judicial authority of the issuing State. The appeal was therefore declared inadmissible and the surrender decision remained in force

The case concerned a European Arrest Warrant issued by the District Court of Munich, at the request of the European Public Prosecutor’s Office in Munich, for the prosecution of offences relating to an alleged transnational VAT fraud scheme involving missing trader companies. The Court of Appeal of Milan ordered surrender, subject to the condition that, in the event of conviction, the requested person be returned to Italy to serve any custodial sentence. The requested person challenged the decision, arguing that surrender should have been refused because an EPPO proceeding concerning the same facts was already pending before the Naples office, creating a risk of parallel proceedings and ne bis in idem. The Italian Supreme Court rejected the appeal. It held that the optional territoriality refusal ground requires a current and concrete conflict of jurisdiction, not merely a potential overlap. In any event, where the EAW is issued within EPPO proceedings, coordination issues between delegated European prosecutors operating in different Member States must be resolved within the EPPO framework and do not fall to the Italian executing court. The Italian court must only verify that the EAW comes from a judicial authority of another Member State and satisfies the statutory requirements. In the present case, the Naples EPPO office had clarified that its investigation concerned only the year 2016 and was at an initial stage, while the German EAW covered a broader factual context from January 2016 to July 2024, involving more transactions and companies. Any possible overlap was therefore limited and insufficient to justify refusal, especially since the Italian authority had not expressed an intention to exercise its punitive power over the facts covered by the EAW. The Court also rejected the objection that the EAW was too generic, holding that it adequately described the associative context, the requested person’s role, the timeframe, the applicable offences and penalties. The appeal was dismissed and the surrender order upheld.

The case concerned a prosecution European Arrest Warrant issued by the Hamburg District Court for attempted aggravated theft in conspiracy. The requested person challenged surrender, arguing that the EAW did not contain sufficient identifying information and that the German authorities should have used less intrusive instruments, such as a European Investigation Order, if the real purpose was investigative. The Italian Supreme Court dismissed the appeal. It held that, after the 2021 reform of Law No. 69/2005, the EAW must indicate the identity and nationality of the requested person, but further identification data, fingerprints or DNA are not required unless there is a concrete doubt as to identity. In this case, the correspondence of personal details was sufficient and no real doubt emerged. As to the purpose of the warrant, the Court held that a prosecution EAW is legitimate where the person is sought for pending criminal proceedings, including appearance before the judicial authority or trial. It is not for the executing State to review the issuing authority’s assessment of the need for the person’s presence. An EIO may be used for evidence-gathering purposes, but it cannot replace an EAW where the requested person must be transferred for criminal proceedings rather than merely heard for evidentiary purposes. Since there was no indication that the warrant had exclusively investigative aims detached from prosecution, surrender was upheld.

The case concerned a Georgian extradition request for the execution of a final sentence imposed by the Tbilisi City Court for false testimony. The requested person, a Georgian national living in Germany, opposed extradition and relied in particular on the risk of ill-treatment in Georgian detention because of his pansexuality and his belonging to the LGBTQI+ community. After the Administrative Court of Berlin ordered Germany to recognise him as a refugee on that basis, the Berlin Public Prosecutor General requested that extradition be declared inadmissible. The Kammergericht Berlin held that the formal extradition requirements were met and that the offence was punishable under both Georgian and German law. However, extradition was barred because there were serious reasons to believe that, if surrendered, the requested person would face persecution or a worsening of his situation in detention due to his sexual orientation and membership of a particular social group. The Court noted that the refugee recognition decision was not formally binding in the extradition proceedings, but it strongly indicated a real risk of persecution. It also relied on country information concerning discrimination against LGBTQI+ persons in Georgia, including open and state-linked discrimination and insufficient protection against persecution. General diplomatic assurances of protection from violence and abuse were not sufficient to remove the individual risk. The Court therefore declared extradition inadmissible, lifted the extradition arrest warrant and related detention decisions, and ordered the State Treasury to bear the necessary expenses incurred by the requested person.

The case concerned a prosecution European Arrest Warrant issued by the District Court of Rostock, Germany, in criminal proceedings for breach of instructions connected with German “conduct supervision”, a measure imposed after the requested person had fully served a previous prison sentence. The requested person argued that, given his alleged integration in Italy, the measure and any future sentence should be executed in Italy, and that the custodial measure was disproportionate. The Italian Supreme Court rejected the argument based on residence, noting that no five-year lawful and effective residence in Italy had been alleged and that, in any event, the case concerned a prosecution EAW, for which integration may at most lead to the return condition under Article 19(2) of Law No. 69/2005. However, the Court held that the Court of Appeal had failed to assess the legal nature of the German “conduct supervision” measure, which was essential to verify double criminality. Depending on its classification, the breach could be comparable under Italian law to violation of an ancillary penalty, breach of special preventive supervision, or mere breach of a security measure such as supervised liberty, the latter not amounting to a separate criminal offence in Italy. Since that assessment had not been carried out, the judgment was annulled and the case remitted for supplementary information and a new decision.

The case concerned a prosecution European Arrest Warrant issued by the District Court of Heidelberg, Germany, for the execution of a national arrest warrant relating to aggravated theft and fraud. The requested person challenged the surrender decision on the ground that the EAW did not expressly indicate the minimum and maximum penalties applicable under German law, as required by Article 6 of Law No. 69/2005, and argued that the Italian court should at least have requested supplementary information from the issuing authority. The Italian Supreme Court held that the omission of the penalty range in a prosecution EAW does not itself constitute a ground for refusal, since the grounds for refusal are exhaustively listed in Articles 18 and 18-bis of Law No. 69/2005. The Court further held that the EAW must be unequivocal but not necessarily explicit where the missing information can be inferred without uncertainty from the statutory provisions indicated in the warrant. Since the requested person had not shown any specific prejudice to his defence rights or any concrete risk of disproportionate or inhuman punishment, the appeal was dismissed and surrender remained ordered.

The case concerned a prosecution European Arrest Warrant issued by the District Court of Hechingen, Germany, for several alleged offences of computer fraud committed in Germany, including in an organised form. The requested person challenged the surrender decision, arguing that the Italian Court of Appeal had failed to examine possible Italian jurisdiction over the facts and the related optional refusal ground, and had also failed to rule on his request to serve any future custodial sentence in Italy. The Italian Supreme Court held that the territorial-jurisdiction objection under Article 18-bis of Law No. 69/2005 was inadmissible because it had not been raised before the Court of Appeal and, in any event, required proof that Italian jurisdiction had already been effectively exercised over the same offence when the EAW was received. However, the Court found that the Court of Appeal had omitted to rule on the requested person’s express request, as an Italian citizen, that any sentence imposed in Germany be served in Italy under Article 19(2) of Law No. 69/2005. Since formal Italian citizenship was sufficient and no further factual assessment was required, the Supreme Court directly made surrender conditional on the requested person’s return to Italy to serve any sentence imposed in Germany, dismissing the appeal in all other respects.

The discretion granted to the Court of Appeal to postpone surrender in order to allow the requested person to stand trial in Italy for an offence other than that covered by the European Arrest Warrant necessarily entails an assessment of expediency. That assessment must take into account not only the seriousness of the offences charged and the date on which they were allegedly committed, but also the stage of the Italian proceedings and other relevant factors, including the person’s custodial status, the complexity of the proceedings, the procedural phase or level of jurisdiction reached, whether the proceedings have been finally determined by a res judicata judgment, and the length of any sentence to be served in Italy. These criteria must be assessed globally and in a reasoned manner, through an adequate and relevant statement of reasons. The evaluation is discretionary in nature and is based on the criteria arising from Article 20 of Law No. 69 of 2005. Where supported by adequate and pertinent reasoning, it is not subject to review by the Court of Cassation. In the present case, however, the judgment was entirely silent as to the appropriateness of postponing surrender, since it failed to carry out any comparative assessment of the procedural interests of the two Member States.

In proceedings concerning a European Arrest Warrant issued by Germany for VAT evasion offences, the Supreme Court of Cassation held that the alleged lack of jurisdiction of the ordinary German public prosecutor, in favour of the European Public Prosecutor’s Office (EPPO), does not constitute a ground for refusal of surrender under Italian law. The Court clarified that EPPO competence under Regulation 2017/1939 is concurrent rather than exclusive and that disputes concerning the allocation of investigative powers between EPPO and national prosecuting authorities fall within the legal system of the issuing State and cannot be reviewed by the executing judicial authority. The Court further stated that the executing State may assess procedural violations allegedly committed in the issuing State only where they result in a breach of fundamental constitutional principles or inalienable rights protected under Article 2 of Law No. 69/2005, the TEU, or the ECHR. It also reiterated that, in tax-related European Arrest Warrant proceedings, the requirement of double criminality is mitigated and does not require perfect correspondence between the foreign and domestic offences, nor identical punishment thresholds or sanctioning regimes, provided that the conduct remains criminally punishable under both legal systems.

The case concerned a German request for extradition from Italy for prosecution in relation to drug-trafficking offences allegedly committed before 7 August 2002. Although the German authorities relied on a European Arrest Warrant, the Court of Appeal of Bologna held that the ordinary extradition regime applied because the facts pre-dated the temporal scope of the Italian EAW legislation. The defence objected that a previous German request concerning the same person, the same facts and the same underlying arrest warrant had already been the subject of extradition proceedings, which had ended after Germany withdrew the request. The Court accepted that objection. Relying on Article 707 of the Italian Code of Criminal Procedure and on Supreme Court case law, it held that a previous judgment contrary to extradition precludes a later favourable decision on a renewed request by the same State for the same historical facts, unless the new request is based on elements not previously assessed. The Court found that the renewed German request was based on the same facts and the same charges, was filed more than five years after the earlier proceedings and more than twenty years after the alleged conduct, and did not rely on any new factual elements. The previous withdrawal therefore produced a preclusive effect preventing a new favourable extradition judgment. The Court refused the request and revoked the coercive measure in place.

The case concerned a European Arrest Warrant issued by a Delegated European Prosecutor of the European Public Prosecutor’s Office in Germany for the surrender of a Dutch national. The Amsterdam District Court had to determine whether the requested person had effective judicial protection in the issuing State, given that the EAW had been issued by a prosecutorial authority rather than by a judge. The central issue was whether the proportionality of issuing the EAW had been reviewed by a German court, either implicitly when the national arrest warrant was issued or through a remedy available before surrender. The Court found that the information provided by the issuing authority was still insufficient, particularly because the national arrest warrant had been issued almost one month before the EAW and it was unclear whether the German judge had actually taken the subsequent EAW into account. The Court therefore reopened and stayed the proceedings, requesting further information from the issuing authority before deciding on surrender.

The case concerned a request to reopen the assessment of the admissibility of extradition to the United States after extradition had already been declared admissible and subsequently authorised. The requested person argued that new doubts had arisen as to whether the United States would comply with the principle of speciality, in particular in relation to sentencing, and also sought postponement of surrender pending proceedings in Denmark concerning the Danish authorities’ refusal to issue a European Arrest Warrant. The Higher Regional Court of Munich rejected the applications. It held that a renewed decision under section 33(1) of the German Act on International Cooperation in Criminal Matters requires new circumstances capable of affecting the admissibility decision, and that mere doubts about the requesting State’s future compliance with speciality are insufficient, especially where the United States had provided binding diplomatic assurances that the person would be prosecuted only for the offences for which extradition had been granted. The Court also held that Germany was not required to postpone surrender until the conclusion of proceedings in the requested person’s home Member State, since Denmark had already been informed and had stated that it would not seek surrender by issuing a European Arrest Warrant. No preliminary reference to the Court of Justice of the European Union was required.

The surrender of the requested person to the requesting State renders inadmissible, for supervening lack of interest, any appeal lodged by that person against the order rejecting the request for revocation or for a declaration of ineffectiveness of the coercive precautionary measure imposed in the same proceedings. As regards the relationship with unlawful detention, an interest in challenging a personal precautionary measure after its termination can be recognised only where a specific issue is expressly raised as to whether the conditions for that remedy are met. Accordingly, such a challenge cannot be pursued in relation to a precautionary measure in respect of which the finding that the conditions for surrender were satisfied — a finding not contested on appeal — has been embodied in an order that has since become final.

The case concerned extradition proceedings under the U.S.–Germany extradition treaty, in which the defendant sought revocation of a detention order entered pending extradition. He argued that special circumstances justified release, relying on his medical condition, alleged delays in the extradition proceedings, and family responsibilities, and further maintained that he was not a flight risk. On de novo review, the District Court held that none of those factors amounted to special circumstances capable of overcoming the presumption against bail in extradition cases. Because no special circumstances were established, the Court denied the motion to revoke the detention order without reaching a final determination on flight risk or danger to the community.

For the purposes of double criminality under the European Arrest Warrant, it is not necessary that the abstract legal definition of the offence in the foreign legal system exactly corresponds to a provision under Italian law. It is sufficient that the concrete conduct is punishable as a criminal offence in both jurisdictions, regardless of any differences in the legal classification, the elements required for the offence, or the applicable penalties. This requirement was met in the present case, as the Court of Appeal found that the conduct consisting of the sale of goods bearing counterfeit trademarks without a valid legal basis is also criminally punishable under Italian law. Accordingly, the Court correctly held that the objections raised could not be upheld, since any assessment of the factual circumstances falls outside its scope of review and pertains instead to the merits of the proceedings before the German judicial authority.

The requested person, a Danish national, sought reconsideration of the decision declaring his extradition to the United States admissible for specified fraud and money-laundering charges. The Court held that the assurances provided by the United States sufficiently guaranteed compliance with the principle of speciality, including a directly enforceable right before US courts and the exclusion of any sentence enhancement based on charges for which extradition had been refused. It also found that double criminality was satisfied, that the promised detention conditions met the applicable human-rights standards, and that neither fair-trial concerns nor family-life considerations barred extradition. Applying the principles established in Pisciotti, the Court further held that EU law did not require a return-transfer assurance, since Denmark had declined to issue a European Arrest Warrant and the requested person had no relevant ties to Germany. The applications for reconsideration were therefore rejected and continued extradition detention was ordered.

The Court of Appeal may rely on the guarantees provided by the issuing State, which clarified that the requested person: (a) will receive medical assistance within the penitentiary facility; (b) may, if necessary, be permanently admitted to the prison infirmary; (c) will be provided with pharmacological treatment and psychological support; and (d) may, if necessary, be placed in a cell under video surveillance. The Court also drew the requesting State’s attention to the need to put in place effective safeguards and monitoring measures to protect the requested person’s health, including by considering the possibility of alternatives to custodial detention.