Extradition (Jurisdiction) Case

CourtObsolete Court (Germany)
Docket NumberCase No. 165
Date13 i 1936
Germany, Supreme Court of the Reich (in Criminal Matters).
Case No. 165
Extradition (Jurisdiction) Case.

State Succession — Treaties — Extradition Treaties — Treaties Concluded by German States prior to the Abolition of the Federal System in 1934.

Extradition — In General — Right of the Accused to Challenge the Legality of the Extradition before the Courts of the Requesting State — Prescription — Whether a General Rule of International Law — Extradition Treaties — State Succession.

The Facts.—The appellant had been extradited by France to Switzerland. He had been convicted there and had served his term of imprisonment until October 22, 1933. He was then extradited by Switzerland to Germany, at the request of the German government and with the consent of France, in consequence of a warrant of arrest issued on April 15, 1931, by the Court of Berlin in respect of five cases of fraud, listed under five different heads. The Swiss authorities, at the request of France, made the extradition dependent upon the condition that the act of fraud listed under No. 4 of the warrant of arrest must not be prosecuted, on the ground that this act was not punishable by French law. This condition was complied with. The appellant was then convicted on January 21, 1936, for three acts of fraud committed in Berlin and listed under Nos. 2, 3 and 5 of the warrant of arrest. He appealed. He contended that the Court had no jurisdiction. The Supreme Court, in interpreting his plea to the jurisdiction, understood it to be an allegation that the extradition was illegal, having regard to the existing law governing extradition. It appears that the appellant relied on French, German and Swiss municipal law and on international law.

Held: that the appeal must be dismissed.

I. Extradition Treaties and State Succession.—With regard to the extradition provisions which might be applicable in the circumstances, the Court found that extradition between Germany and Switzerland was governed by the Treaty of January 24, 1874,1 while no extradition treaty existed between Germany and France, apart from two special agreements.2 With regard to the possible application of the extradition treaties concluded between France and the German States, the Court said: “The extradition treaties concluded between France and the German States are extinguished in consequence of the law of January 30, 1934, regulating the reorganisation of the German Empire, by virtue of which Germany has become a unitarian State...

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