HEADNOTE:

Extradition following Conviction by Trial conducted in absentia in Italy

    Order of the Second Senate of 9 March 1983 in the case 2 BvR 315/83:

in the proceedings on the constitutional complaint of S.

against the order of the Frankfurt Regional Appeals Court of 4 February 1983 -- 2 Ausl. 54/82 --

here: application for the issuance of a temporary injunction.

DECISION:

The effectiveness of the order of the Frankfurt Regional Appeals Court of 4 February 1983 -- 2 Ausl. 54/82 -- is, insofar as in this order the extradition of the Complainant had been declared to be admissible, suspended until such time as decision is reached on the constitutional complaint.

EXTRACT FROM GROUNDS:

I.

1.  The Complainant, born on 5 May 1949 in Lebanon, is a Canadian national. He lives in Stockholm.

On the basis of an Italian request, he was arrested on 12 October 1982 in Frankfurt upon entry into the country. On 14 October 1982, the Regional Appeals Court directed provisional detention pending extradition.

By way of letter of 3 November 1982, Italy formally requested the extradition of the Complainant for the execution of a final and conclusive judgment by the Milan District Court of 28 March 1979, together with an arrest order for the purposes of execution by the Milan Prosecutor's Department of 17 March 1982.  . . .

The proceedings before the Milan District Court were conducted in the absence of the Complainant.

The Complainant was heard before the District Court (Germany) on 13 and 20 October and on 29 November 1982.  He stated that he was not the person sentenced by judgment of the Milan District Court and that he was not in Italy at the time of commission of the offence. He further stated that he was not willing to consent to his extradition.

On 18 November 1982, the Regional Appeals Court directed that the provisional arrest pending extradition was to continue as formal arrest. In addition, it placed a deadline of 20 December 1982 on the Italian authorities to establish conclusively the identity of the Complainant. . . .

The Italian authorities subsequently merely pointed out that upon review of the identification materials forwarded by the German authorities, it was to be assumed that the Complainant had been subjected to identification procedures in France and in Canada under the name of "Sami Skaff".

By way of order of 20 December 1982, the Regional Appeals Court ordered the continuation of arrest pending extradition, since it could be expected that the documents necessary to identify the Complainant would arrive shortly.

The Italian authorities finally forwarded a number of further documents and identification materials. Following review of these documents, including under the assistance of the Federal Criminal Office, the Federal Prosecutor at the Regional Appeals Court presented the Regional Appeals Court on 21 January 1983 with the files, simultaneously applying that the extradition be declared admissible. . . .

The Complainant, represented by several agents, countered this application with the assertion that the identity of the person convicted by the Milan District Court had not been conclusively established; further, he alleged that such an establishment is no longer possible. . . .

By way of order of 4 February 1983, the Regional Appeals Court declared the extradition admissible. At the same time, it directed the further continuation of arrest pending extradition. . . .

The fact that the Complainant had been convicted in absentia was held by the Regional Appeals Court to be unobjectionable for the reason that, according to Italian law of criminal procedure, a person convicted in absentia is able to reinstate the proceedings and is in this manner able to achieve a renewed judicial review of the criminal matter. . . .

2.  With his constitutional complaint, the Complainant objects to the order of the Regional Appeals Court of 4 February 1983, to the extent that his extradition had been declared admissible in this. He maintains that "Articles 1, 2 and 103 of the Basic Law, together with the principle of rule of law" had been violated.

. . .

II.

It is not apparent that the admissible constitutional complaint has no prospects of success.

It can initially be left aside as to the extent to which the Complainant's claim with respect to the determination of personal identity is of constitutional significance. At the present, there exist doubts as to whether the Regional Appeals Court took adequate account of the circumstance that the Complainant was sentenced in Italy in absentia.

1.  In reviewing the admissibility of an extradition, the German courts are basically not to examine the lawfulness of the manner in which the foreign criminal conviction came about, for whose enforcement the Complainant is to be extradited. They are, however, not prevented -- and, under certain circumstances, are in fact obligated by the Constitution -- from reviewing whether the extradition and the acts underlying it are compatible with public international law's minimum standard binding on the Federal Republic of Germany under Art. 25 of the Basic Law and with the irrenouncable constitutional principles of its public order. A review of this sort might be called for when a foreign criminal conviction, for whose enforcement extradition is to be had, was made in the absence of the Complainant. [i] Under German constitutional law, it is one of the elementary requirements of rule of law -- which is particularly expressed in the guarantee of a legal hearing in court [ii] -- that a person may not be made the mere object of State proceedings conducted against him; in addition, the individual's human dignity [iii] would be violated by such State action. [iv] Particularly for criminal proceedings, which can lead to the most severe interferences in the personal liberty of the individual, this leads to the mandatory precept that an accused, within the scope of appropriate rules of procedure, must have the possibility of being actually able to influence the proceedings, to comment personally on the accusations raised against him, to present exonerating circumstances, and to achieve a comprehensive review of these, as well as their being taken into consideration. [v] In this regard, it is unnecessary to analyse the effect of an accused intentionally failing to appear at proceedings of which he is aware.

The essential core of these guarantees belongs both to the indispensable basis of the German public order and to the minimum standard under public international law, [vi] which forms a part of the Federal Republic of Germany's national law by way of Art. 25 of the Basic Law.

Under the Constitution, extradition to enforce a foreign criminal conviction rendered in absentia likely gives rise, in application of this standard, to constitutional reservations when the Complainant was neither informed of the fact that the trial was to be conducted nor provided with an effective opportunity to obtain a legal hearing following receipt of this information and to defend himself effectively.

2.  At the present time, it is not possible to examine conclusively whether the Regional Appeals Court took adequate account in the instant case of these constitutional requirements and afforded the Complainant with the requisite legal protection called for under Arts. 19(4), first sentence, and 103(1) of the Basic Law.

The assertion that the fact that the Complainant was convicted in absentia presents serious reservations was basically negated by the Regional Appeals Court with the sole consideration that the Italian law of criminal procedure recognizes that possibility of reinstatement of the proceedings. The Court, however, did not deal in detail with the question of whether this possibility truly allows a person convicted in absentia subsequently to obtain an effective legal hearing and an opportunity to defend himself; the Complainant has denied that this would be the case.

It thus does not appear to be absolutely precluded that the Complainant's view might be correct; he asserts that his well-founded interest in being adequately able to defend himself against the accusations underlying his conviction is not sufficiently addressed with the mere fact that the Italian law of criminal procedure recognizes the possibility of reinstatement of the proceedings. [vii] At the present, it is not possible to examine conclusively whether the Constitution might call for a further resolution of the facts at issue, a clarification of Italian law and an analysis of the practice by Italian courts in rendering verdicts.

3.  Under these circumstances and in view of the irreparable consequences that may result from approval of extradition by the Federal Government and its enforcement, it seems required by § 32(1) of the Federal Constitutional Court Act that the effectiveness of the Regional Appeals Court's decision on the admissibility of extradition be temporarily suspended.

Judges: Zeidler, Rinck, Wand, Rottmann, Niebler, Steinberger, Träger, Mahrenholz

[viii]

[i] Cf. BVerfGE 59, 280, 282 ff.

[ii] Art. 103(1) of the Basic Law.

[iii] Art. 1(1) of the Basic Law.

[iv] Cf. BVerfGE 7, 53, 57-58; BVerfGE 9, 89, 95; BVerfGE 39, 156, 168; BVerfGE 46, 202, 210; BVerfGE 55, 1, 5-6.

[v] Cf. BVerfGE 41, 246, 249: BVerfGE 46, 202, 210; BVerfGE 54, 100, 116.

[vi] Cf. BVerfGE 59, 280, 283 ff.

[vii] Cf., e.g., Corte Constituzionale (Italian Constitutional Court), decision of 12 February 1970 (No. 25/1970), Raccolta Ufficiale, vol. XXXI, pp. 207, 212.

[viii]

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