The second chance in extradition proceedings. Section 33 of the German Act on International Judicial Cooperation in Criminal Matters (IRG) is the key to a second chance in extradition proceedings. Pursuant to Section 33 of the IRG the Higher Regional Court may, upon application by the prosecuted person or his/her attorney, decide again on the admissibility of extradition in extradition proceedings if, after the first Higher Regional Court's decision (on the admissibility of extradition), new circumstances become known and are presented that could justify a different decision on the admissibility of extradition.

The 2nd chance actually always exists if the defense in the extradition proceedings were not complete until then and fundamental rights would be violated by the execution of the extradition. You just have to be in time, because otherwise the extradition can be carried out very quickly after the first decision of the Higher Regional Court on admissibility if you do not make immediate and decisive use of the 2nd chance.

German Lawyer on extradition proceedings: the second chance 

The second chance often allows the German Higher Regional Court to completely reconsider the situation. We have seen many proceedings in which the clarification of detention conditions - that must comply with human rights - had been insufficient, including in those detention centers where the persecuted person would be placed in the home country in the context of a later reopening of criminal proceedings and retrial. In such cases, the German Higher Regional Court demands comprehensive information on the conditions of detention and details of the intended detention facilities. And it is not uncommon for this information state still not to arrive within weeks and months (see Schleswig-Holstein Higher Regional Court (see 1 AR 32/22)), which leads to the annulment of the first German admissibility decision.

The fact that answers from the requesting state do not come may also, in particular, concern the prerequisites of "judgments in absentia" from the requesting state. Pursuant to Section 83 (1) no. 3 IRG, extradition may be inadmissible in the case of judgments in absentia. Judgments in absentia are handed down when a judgment from criminal proceedings in the home country of the prosecuted person is to be enforced in which the convicted person was not personally present at the trial at all - or only in part - or was not defended by a domestic lawyer. The specific information requested by the Higher Regional Court is often not provided correctly or not completely by the country requesting extradition. In such cases, it can no longer be assumed in Germany that the persecuted person was personally present on all days of the proceedings in the country requesting extradition. As a consequence, the German Higher Regional Court (OLG) must revoke the extradition decision and declare the extradition inadmissible. Otherwise, the only recourse left to the persecuted person is to go to the German Federal Constitutional Court.