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Germany / Higher Regional Court Stuttgart / Az.: 1 Ausl. (24) 1246/09

B v. Audiencia Provincial de B./Spanien

Policy area:
Justice, freedom and security
Deciding Body type:
National Court/Tribunal
Deciding Body:
Higher Regional Court Stuttgart
Type:
Decision
Decision date:
25/05/2010
ECLI:
ECLI:DE:OLGSTUT:2010:0225.1AUSL.(24)1246.09.0A

Key facts of the case:

The persecuted person, a Liberian citizen, has a European arrest warrant issued by the Audiencia Provincial de B./Spain. He is accused of offering a bag with 0.199 grams of cocaine with an active ingredient content of 51.13% for 60 euros for sale in 2008 in B./Spain to an officer of the B. Autonomous Police on civilian duty. According to Art. 368 Spanish Penal Code, the act is threatened with imprisonment from three to nine years; the public prosecutor B./Spain has applied for four years imprisonment. In Spain, another five proceedings for illicit drug trafficking are pending against the persecuted person in 2008, but have not yet been finally judged and are not part of the extradition proceedings. The persecuted person has multiple criminal records in the Federal Republic of Germany; i.a. In 2004 he was sentenced to one year and ten months' imprisonment for commercial illicit drug trafficking, which he served until 2006. At the request of the Public Prosecutor's Office, the Senate issued an extradition arrest warrant.

Key legal question raised by the Court:

Outcome of the case:

1. Article 49 (3) of the Charter of Fundamental Rights of the European Union (principle of proportionality in connection with criminal offenses and penalties) may prevent the person being persecuted from being extradited to a Member State of the European Union on the basis of a European arrest warrant if the punishment threatened by the person persecuted would be unbearably severe . (official guiding principle)

2. When issuing an extradition warrant based on a European arrest warrant, the principle of proportionality under German constitutional law must be fully observed.