Germany

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 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 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 United States sought the extradition of a Danish national for fraud, money laundering and related offences concerning the alleged misuse of research funds. The Court held that extradition was inadmissible for counts 2–4 and 6–13 because the same acts had already been the subject of a final and binding discontinuance of criminal proceedings in Denmark; the transnational ne bis in idem principle under Article 50 of the Charter and Article 54 CISA also applies to final non-judicial prosecutorial decisions. Extradition remained admissible for counts 1, 5 and 14–22 because double criminality was satisfied, prosecution was not time-barred under US law, and the United States had provided reliable assurances that the principle of speciality would be respected. The Court also rejected objections based on alleged political motivation, fair-trial risks, sentence severity, detention conditions and the absence of a return-transfer assurance. Continued extradition detention was ordered on the basis of flight risk.

The Higher Regional Court of Munich reconsidered the admissibility of the surrender of a requested person to Italy following additional submissions alleging deteriorating prison conditions in Italian detention facilities. The defence relied on NGO reports, articles concerning prison overcrowding, and photographs allegedly showing injuries caused by bedbug infestations during a prior detention in Italy, arguing that surrender would expose the requested person to a real risk of inhuman or degrading treatment contrary to Art. 4 of the EU Charter. While the court initially considered the allegations insufficiently substantiated, it held that the new submissions raised at least plausible concerns requiring further clarification. The court therefore postponed the execution of the surrender and ordered the German prosecution authorities to obtain binding assurances from the Italian authorities regarding minimum personal space, hygiene standards, medical care, and the absence of insect infestations in the detention facility where the requested person would be held.

EAW: changes to the charge underlying the request for surrender are certainly permissible, as they fall within the normal development of the criminal proceedings pending before the judicial authority of the issuing State, provided that they occur prior to the decision of the Court of Appeal and are based on an emendatio libelli within the scope of the original charge underlying the European Arrest Warrant.