Germany

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.

The issue raised concerns the absence, under German law, of a precautionary measure equivalent to house arrest, which—according to the defence—would be proportionate to the seriousness of the alleged offence and to the personality of the offender. It follows that Pr.Gj. would be unjustifiably subjected, solely for the purpose of enabling the conduct of the trial, to a restriction of personal liberty more severe than necessary, in breach of the principle of proportionality enshrined in Article 49 of the Charter of Fundamental Rights. Judicial review cannot extend to questioning the system of precautionary measures provided for by another Member State and their regulatory framework, since Framework Decision 2002/584/JHA is itself based on relations of mutual trust and cooperation between Member States. The Court is not unaware that, according to a broad interpretation of the expression “pre-trial detention” contained in Framework Decision 2009/829/JHA (as an instrument for the execution in Italy of a graduated measure such as house arrest), house arrest could fall within the scope of that instrument. However, it considers preferable to adhere to the line of case law according to which that body of provisions refers exclusively to non-custodial measures. A different interpretation would, in fact, lead to an improper overlap between those provisions and the regulatory framework governing active surrender proceedings under the European Arrest Warrant, which unquestionably applies—pursuant to Article 28 of Law No. 69 of 22 April 2005—where the measure to be executed is that of house arrest.