In a case that has been fought over since 2020, the Higher Regional Court of Hamm (III-2 Ausl 49/21) rejected the extradition of a Greek living in Germany to Italy for execution of a sentence on April 25, 2023.

No extradition to Italy due to judgment in absentia

The extradition request was based on a judgment in absentia from Italy with a heavy prison sentence. We pointed out the deficiencies of the Italian criminal proceedings in the specific case on behalf of the prosecuted person and were able to rely on an earlier ruling of the Federal Constitutional Court. The Higher Regional Court of Hamm then made very thorough efforts to clarify the matter via the GenStA in Italy and demanded a clear statement from the Ancona public prosecutor's office as to how exactly the judgment in absentia in Ancona came about at the time. We asserted an obstacle to extradition for the prosecuted person pursuant to Section 83 IRG. Since May 2021, the Italian prosecution authorities have been confronted several times with requests from Germany. The public prosecutor's office in Ancona took a long time to respond. In the end, the Higher Regional Court of Hamm could not find the exceptions for judgments in absentia (§ 83 II-IV IRG) in the answers from Italy and declared the extradition inadmissible.

Lawyer on extradition and German Federal Constitutional Court (BVerfG) case law

Earlier, in a spectacular decision from December 2015 (- 2 BvR 2735/14), the German Federal Constitutional Court had overturned an extradition decision of the Düsseldorf Higher Regional Court in a similarly structured case. In the proceedings, the prosecuted person had also claimed a violation of his fundamental rights under Art. 1, Art. 2 I and II p. 2, Art. 3 and Art. 103 I GG, his fundamental right to a fair trial (Art. 2 I i.V.m. Art. 20 III GG, Art. 6 III ECHR), as well as a violation of the binding minimum standards of international law under Art. 25 GG and a violation of Art. 6 ECHR. The prosecuted person was not aware at any time that a trial was taking place against him in Italy. And subsequently, during the extradition proceedings, Italy also failed in this case to guarantee that, after his extradition, he would be granted the right to a new trial in which the allegations of the crime would be re-examined in his presence from a factual and legal perspective.

In its decision from December 2015 (- 2 BvR 2735/14 -), the German Federal Constitutional Court already highlighted the "principle of guilt", which governs the entire area of state punishment and is anchored in the guarantee of human dignity and individual responsibility as well as in the principle of the rule of law (Article 1 I of the German Basic Law) and is protected from interference by public authority and precludes extradition to enforce a criminal judgment issued in the absence of the prosecuted person.

The principle of "no punishment without guilt" (nulla poena sine culpa) constitutes an obstacle to extradition. According to the rule of law, every punishment presupposes guilt. And the realization of the "principle of guilt" is endangered if the investigation of the true facts is not ensured, which in principle presupposes the presence of the accused at the trial. The minimum guarantees of defendants' rights in criminal proceedings provided by the "principle of guilt" must also be observed when deciding on extradition to enforce a criminal judgment rendered in the absence of the prosecuted person.

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