TPF, 11.02.2026, RR.2025.172, RP.2025.81
Facts
The German authorities issued two alerts in the Schengen Information System (SIS) for the arrest and extradition of A. (the appellant), notably for fraud. Arrested in Switzerland, the appellant was placed in extradition detention by the Federal Office of Justice (FOJ) on September 2, 2025. During his hearing, he refused the simplified extradition procedure. (Facts A-C)
In September 2025, the German authorities (Baden-Württemberg and Bavaria) formally requested the appellant's extradition for the execution of several sentences handed down by the regional courts of Stuttgart (2015), Munich (2019), and Augsburg (2024), as well as for acts covered by an arrest warrant from the Munich District Court (2025). On October 28, 2025, the FOJ granted the extradition. (Facts F, O)
The appellant, acting first alone and then through court-appointed counsel, filed an appeal against this decision with the Federal Criminal Court. He requested that the extradition be denied, that he be released immediately, and that he be awarded compensation. In his reply, he added claims regarding the return of seized items and the retroactive coverage of his legal fees. (Facts P, R)
Law
The extradition procedure between Switzerland and Germany is governed by the European Convention on Extradition (ECE), the Schengen Agreement (CISA) and its developments, as well as bilateral agreements. The Federal Act on International Mutual Assistance in Criminal Matters (IMAC) applies on a subsidiary basis, particularly when its application is more favorable to extradition (principle of favor). (consid. 2.1, 2.2)
According to established case law, a reply brief may not contain new claims or new grievances that could have been raised in the initial appeal. Such claims are in principle inadmissible, unless they appear decisive (art. 32 para. 2 APA). (consid. 3.3.1)
The principle of ne bis in idem (art. 9 ECE, art. 5 IMAC) prohibits prosecuting or punishing a person for acts for which they have already been definitively tried on the merits. This principle applies only to decisions on the merits rendered by the requesting state or the requested state, excluding a third state. An extradition decision, being administrative in nature, does not constitute a judgment on the merits and does not prevent another state from submitting a new request. (consid. 4.3.1, 4.3.2)
An extradition request is inadmissible if the sentence has been served or can no longer be served under the law of the state that issued the ruling (art. 5 para. 1 let. b IMAC). The judge overseeing mutual assistance is bound by the statement of facts in the request and does not review the legality of foreign decisions, except in cases of manifest errors or omissions. The good faith of the requesting state is presumed. (consid. 5.2.3.1, 5.2.3.2, 5.2.3.3)
Extradition is granted only if the alleged acts are punishable in both states (principle of dual criminality, art. 2 ECE). It is sufficient that the facts described in the request correspond, prima facie, to the constituent elements of an offense under Swiss law, without requiring an identical legal classification. The relevant offenses in this case are criminal breach of trust (Art. 138 SCC), fraud (Art. 146 SCC), and forgery of documents (Art. 251 SCC). (consid. 6.3.1, 6.3.2, 6.4.1, 6.5.1, 6.6.1)
Application to the case at hand
The Court first declared the appellant's new claims regarding the return of seized items and the retroactive appointment of his court-appointed lawyer inadmissible. These requests, submitted for the first time at the reply stage, were untimely. Regarding the seizures, the contested decision did not address this point. As for legal aid for the prior period, it was denied on the grounds that the appellant's indigence had not been established and that the lawyer had resigned from her mandate. (consid. 3.4, 3.5, 3.6)
The grievance based on the violation of the *ne bis in idem* principle was rejected. The appellant invoked a decision by Italian authorities that had authorized his extradition to Germany under certain conditions. The Court reiterated that Switzerland, as the requested state, decides sovereignly and is not bound by an administrative decision of a third state (Italy). The Italian decision did not constitute a judgment on the merits regarding the alleged offenses. (consid. 4.3.3, 4.4)
The argument that the sentence could no longer be enforced (Art. 5 para. 1 let. b IMAC) was also dismissed. First, regarding the late revocation of a suspended sentence by a German court, the Court found that the German judgment provided convincing reasons and that there was no manifest violation of foreign law justifying intervention. Second, the argument that part of the sentence had already been served due to allegedly unlawful detention conditions in Switzerland was rejected. The Court ruled that it is not for Switzerland to decide on the credit for extradition detention against a foreign sentence, as this matter falls under the jurisdiction of the requesting state's authorities (Germany). (consid. 5.2.4, 5.3.3)
Finally, the Court confirmed that the condition of dual criminality was met. The facts described in the German request (fraudulent acquisition of luxury vehicles via leasing contracts with the intent not to pay and to resell them, use of forged documents to attest to false solvency, and fraudulent rental of the same apartment to multiple people while collecting deposits and rent) correspond prima facie to the offenses of criminal breach of trust (Art. 138 SCC), fraud (Art. 146 SCC), and forgery of documents (Art. 251 SCC) under Swiss law. The appellant's argument that these were merely civil disputes was deemed irrelevant in light of the fraudulent maneuvers employed. (consid. 6.3.3, 6.4.2, 6.5.2, 6.5.3, 6.6.2, 6.7)
Outcome
The Federal Criminal Court dismissed the appeal and confirmed the FOJ's decision to grant the appellant's extradition to Germany. Consequently, the ancillary requests for release and compensation for unlawful detention were also rejected. (consid. 1, 2, 7)
The request for legal aid for the appeal proceedings was denied, as the appeal was deemed to have no chance of success from the outset. (consid. 9)
The procedural costs, set at CHF 3,000, were charged to the appellant. A reduced fee was awarded to his court-appointed lawyer, with the appellant required to reimburse the Court's treasury. (consid. 3, 4, 5, 8, 10)
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