crime investigation as part of the national extradition proceedings

28.12.2016 - Certified specialist for criminal law Dr. Martin Rademacher - alibi can be the salvation in the extradition procedure - sometimes - as an exception - even the comprehensible information of the persecuted person can be sufficient.

In the extradition proceedings for criminal prosecution in another country it is in principle not examined whether the persecutee actually committed the crime for which he was charged abroad. The principle in the law of extradition is: No crime investigation in the national extradition proceedings. In particular, the taking of evidence and the examination of witness statements should remain the responsibility of the state which is in charge of the criminal proceedings and is now seeking extradition (see BVerfG, decision of 9.12.2008, 2 BvR 2386/08).

According to § 10 II IRG, there are exceptions applicable in the German extradition procedure when the suspicion of a crime must even be examined in the case of an European Arrest Warrant, if there are special circumstances, e.g. If the persecutee has an alibi for the time claimed in the EU Arrest Warrant (OLG Karlsruhe, Strafverteidiger 2007, 650). In the case decided by the Higher Regional Court of Karlsruhe, the alibi had even been condensed on the basis of credible testimony, so that the persecuted person could not have committed the act which he had been accused of.

The Higher Regional Court (Kammergericht) Berlin (resolution of 15.10.2012) had to decide on a similar issue but pointed out that the submission of written alibi statements alone was not enough and did not give rise to a crime investigation. For this purpose, the Berlin Court expressly demanded such testimony, which had taken place before a German judge and had been found to be credible.

The Higher Regional Court OLG Hamm ((2) 4 Ausl 24/00) permits, among other things, traceable detailed information of the persecuted person are sufficient to give the General Prosecutor the opportunity to start a kind of crime investigation as part of the national extradition proceedings. In my opinion this approach alone is compatible with the court's obligation.

The almost 30-year-old decision of the Federal Court of Justice (Strafverteidiger 1984, 295) still applies that, if there are significant indications that the requesting state abuses its claim for extradition or the special circumstances of the case give reasons for it, the suspicion of a crime must be examined during extradition procedure.

The Higher Regional Court of Cologne once examined the suspicions, because the extradition request had contradictions and the question of the abusive motivation for the extradition request was pressing. The OLG Braunschweig has carried out a crime investigation because a German prosecutor's office had already ordered an investigation for the same offense and closed the file in accordance with § 170 II StPO, because the initial suspicions had not been confirmed there.