German Federal Constitutional Court (2 BvR 237/18) on extradition to Hungary

We're relieved because everything went as planned. Already a year before we hat confronted the German judiciary with a written statement on the expected extradition proceedings and declared that our client has been sentenced to a high prison sentence in his home country in absentia. Until the Czech Republic requested his extradition for execution on the basis of their judgement in absentia, the German prosecution authorities had no reason to intervene. But when the Czech Republic now submitted a request for extradition, the Karlsruhe Higher Regional Court refused to issue an extradition warrant. The fact that the persecuted person had voluntarily surrendered to the German judiciary a year before was one of the reasons; the central problem in this case also lies with the Chzech judgement in absentia.

european arrest warrant EAW from Czech Republik

In the case of judgments rendered in absentia, it is always a question of detail in the extradition procedure. Basically, everything seems quite simple at first: Extradition is not admissible if the sentenced person did not appear in person at the hearing on which the judgment is based in the case of a request for the purpose of executing the sentence (§ 83 I no. 3 IRG). But then it becomes more complicated, because according to § 83 II no. 1a)aa) IRG, extradition on the basis of a judgement in absentia can still be admissible if the sentenced person was personally summoned to the trial that led to the judgment and simply did not appear.

What does "personally summoned to the trial" mean? - It is necessary that the defendant has a certain knowledge of the trial date, which is why the mere fact that the summons was sent to an address previously communicated as the address for service is not sufficient proof of actual receipt (OLG Karlsruhe 301 AR 25/18 21. 02. 2019). Even the fact that the summons is effective under the law of the requesting state does not lead to any other assessment here (OLG Karlsruhe 301 AR 25/18 21. 02. 2019). It must be unequivocally proved that the persecuted person was aware of the scheduled hearing date and that he was informed that a judgment can also be handed down in his absence.

judgments in absentia from several EU states

Judgments in absentia still exist in several EU states (including Belgium, Italy and the Czech Republic). We are often confronted with European arrest warrants, even though it cannot be proven that the person persecuted was personally summoned to the trial. Sometimes the summons was transmitted to him by delivering it to a third party, but that is not enough in extradition law.

If proceedings abroad extend over several instances, the European Court of Justice (10.8.2017 - C 270/17 PPU (Tupikas) - NStZ 2018, 197) has ruledthat the presence of the persecuted person in the first instance alone is not sufficient. The persecuted person must also be present in person in the second instance if there is a comprehensive examination of the question of guilt and there is no exception to the obligation to appear.

Since many European arrest warrants do not comply with this, it will in future also be necessary to clarify in individual cases how the appeal procedure in the issuing Member State is structured.

There are also problems with decisions taken in the absence of the person being prosecuted in connection with the revocation of a suspended sentence. If the persecuted person - sometimes even despite knowing his place of residence in Germany - has not been granted a hearing in the requesting EU state before the revocation of the suspended sentence, this is not acceptable.