Austro-German Extradition Case [German Federal Republic, Court of Appeal of Hamm.]
| Docket Number | Case No. 103 |
| Date | 15 Enero 1951 |
| Court | Court of Appeal of Hamm (Germany) |
Extradition — Conditions of — Request for Delivery of Convicted Person — Subsequent Amnesty in Requested State — Amnesty Applicable to Terms of Imprisonment Equivalent to Term Imposed by Court of Requesting State — Whether Person Liable to Extradition — The Law of Germany.
The Facts.—The Austrian authorities requested the German authorities to extradite one F., who had been sentenced to a term of six months' imprisonment by an Austrian court. It was contended on F.'s behalf that he was not liable to be extradited, on the ground that an amnesty had been granted in Austria in respect of all sentences of less than six months' imprisonment. Of its own accord the Court of Appeal of Hamm, which had to adjudicate upon the request for extradition, considered the fact that a German Law enacted on December 31, 1949, granted an amnesty in respect of sentences of less than six months' imprisonment passed by German courts.
Held: that s. 4 (2) of the German Law of Extradition of December 23, 1929, which provides that extradition is not to be granted in cases where a sentence cannot be carried out by reason of an amnesty, applied to an amnesty granted under German law notwithstanding that the sentence had been imposed by a foreign court, and that the request for extradition must be refused, irrespective of whether or not F. might also have been entitled to an amnesty under Austrian law. The Court said:
“After his arrest F. relied upon an amnesty in Austria. This question has not yet been resolved. Doubts have arisen, however, whether the German Amnesty Law of December 31, 1949, may not also preclude extradition. By virtue of s. 4 (2) of the German Extradition Law extradition is not permissible in cases where a criminal prosecution or the carrying out of a sentence would not be permissible by reason of an amnesty. … This applies equally where the offence has been committed abroad. … If German law were to be applied the sentence in the present case would...
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