The Frankfurt am Main Higher Regional Court – 2nd Criminal Senate – decided on 19 May 2020 pursuant to section 29 IRG
1. the extradition of the persecuted person for the crimes set forth in the warrant of arrest issued by the U.S. District Court for the Northern Judicial District of Illinois on May 25, 2011 in conjunction with the indictment numbers 4, 5, 8 and 9 of the expanded indictment of May 24, 2011 is inadmissible
2. the extradition warrant of 10 January 2020 as amended by the decision of 2 March 2020 is revoked.
Reasons:
I.
The US authorities are requesting the arrest and extradition to the USA for the purpose of criminal prosecution of the person arrested on 3 January 2020.
The Senate ordered the provisional and then the formal extradition detention of the persecuted person with the decision of 10 January 2020 and with the decision of 2 March 2020.
According to the extradition documents submitted, an arrest warrant of the U.S. Federal District Court for the Northern Judicial District of Illinois dated May 25, 2011 exists against the persecuted person for the purpose of criminal prosecution. The warrant of arrest refers to the charges 4, 5, 8 and 9 in the extended bill of indictment dated May 24, 2011.
The accusation made against the defendant in this case is as follows:
From about July 1999 to October 2007, the persecuted person and others in the Northern District of Illinois and elsewhere, engaged in an international trade in counterfeit art, defrauding hundreds of customers of more than $ 4 million. The persecuted person and the accomplices created and sold totally counterfeit art prints in limited editions, presumably from deceased master artists such as Pablo Picasso or Andy Warhol. Accomplices of the persecuted people counterfeited the artworks in Italy and Spain. The persecuted and other persons arranged for the transport of the counterfeits to the USA via international, commercial transport companies. The persecuted and the accomplices presented counterfeit certificates of authenticity to customers, sold the counterfeit art in galleries, on the Internet and privately. They accepted payment by bank transfer.
Around 11 November 2005, the persecuted and two accomplices released an invoice with the amount of USD 22,500.00 to be sent by fax from Miami Beach, Florida, to the art dealer *** for an assortment of totally counterfeit art prints by Joan Miro, which was also paid in full by the art dealer (indictment number 4).
Around 14 November 2005 the persecuted person and two accomplices initiated a bank transfer of USD 22,500 for the purchase of counterfeit art prints from the business account of the same art dealer to the bank account of the persecuted person in Miami Beach (indictment Number 5).
Both around 21 November 2006 and 6 December 2006, the persecuted person and three accomplices each arranged for a delivery of counterfeit Marc Chagall prints to be shipped from Coral Springs, Florida, to Northbrook, Illinois, via Federal Express, a commercial carrier for interstate shipments (indictment numbers 8 and 9). The buyer of the prints paid a total amount of EUR 12,262.50 to the persecuted person.
In addition, indictment number 1 of the expanded indictment of 24 May 2011, to which reference is made in indictment numbers 4, 5, 8 and 9 respectively, describes in paragraphs 1 to 41 the modus operandi of the group in general, without further concrete accusations being made against the persecuted person.
The persecuted person was arrested on 3 January 2020 on the basis of the aforementioned arrest warrant of the U.S. Federal District Court for the Northern Judicial District of Illinois dated 25 May 2011 and was in custody until 13 May 2020.
The General Public Prosecutor’s Office in Frankfurt am Main requests that the extradition be declared inadmissible and the extradition warrant to be revoked.
II.
The extradition of the persecuted person to the USA is inadmissible, since it is opposed by the prohibition of double jeopardy pursuant to Art. 8 D-USA AusIVertrG (extradition treaty Germany/USA) / Art. 9 EurAuslÜbk (European Convention on Extradition). The Republic of Italy has explicitly invoked this obstacle to the extradition before the Senate in favour of the persecuted person and thus blocked the extradition of the persecuted person as an Italian national. The blocking effect follows from the final and absolute conviction of the persecuted person in the home country Italy for the same acts as mentioned in the extradition request by the United States.
The persecuted person has already been sentenced by the court in Milan on 8 January 2013 to one year imprisonment on probation for offences committed between 2002 and the summer of 2007, in accordance with Art. 416 paragraph 1,02,05 of the Italian Penal Code and Art. 81 and 100 of the Italian Penal Code with Art. 178 paragraph 1 a) and b) of Italian Legislative Decree No. 42 of 22 January 2004.
The conviction of the persecuted person by the court in Milan on 8 January 2013 is based on the following facts:
The persecuted person joined forces with the separately persecuted ***, *** and ***, among others, in order to produce counterfeit art in the form of paintings, sculptures and prints and to sell them with a profit. For this purpose, the persecuted and the accomplices included art dealers in the USA in the group, among others, in order to organize the sale of the counterfeit works of art to trustful customers as well. Within the group, the persecuted person was in particular responsible for the marketing of the forgeries in the USA, where between 2002 and 2007 she dispatched a total of at least 100 counterfeit works of art from Milan in at least 40 deliveries, including one to the owner *** in Medinag (Illinois).
These facts are identical in fact to those of the persecuted person in the arrest warrant issued by the U.S. District Court for the Northern Judicial District of Illinois on 25 May 2011 in connection with charges 4, 5, 8 and 9 in the expanded bill of indictment dated 24 May 2011. All the charges are already included in the conviction of the persecuted person in the judgment of the court in Milan of 8 January 2013.
The same act within the meaning of Art. 54 SDÜ (Schengen Convention) is to be understood as a complex of inextricably linked facts, irrespective of the qualification of these facts or the legally protected interest (see on this point European Court of Justice, NJW 2006, 1781). The persecuted person was finally convicted by the court in Milan on 8 January 2013 for acts according to the modus operandi exactly as described in the arrest warrant of the U.S. Federal District Court for the Northern Judicial District of Illinois of 25 May 2011 with the cooperation of the identical accomplices *** and ***, inter alia at the expense of the identical aggrieved parties ***. The crime periods 11 November 2005 (indictment 4), 14 November 2005 (indictment 5), 21 November 2006 (indictment 8) and around 6 December 2006 (indictment 9) mentioned in the arrest warrant of the U.S. Federal District Court for the Northern Judicial District of Illinois of 25 May 2005 are also all included in the conviction of the persecuted person by the court in Milan (crime period 2002 to summer 2007). These are the same facts and therefore the same procedural offence, namely the sale of counterfeit works of art. The core of the conviction of the persecuted person by the court in Milan was the establishment of a criminal structure to commit fraud worldwide, including in the USA, through the sale of counterfeit works of art. The accusations contained in the arrest warrant of 25 May 2005 are therefore only partial events of an overall event based on a consistent intention to commit fraud, pursuing a uniform direction of attack and largely identical in its manner of commission, which was already the subject of the conviction of the persecuted person by the court in Milan on January 8, 2013. A uniform offence is determined if one framework was created through the support and exploitation of organisational structures, which are designed to harm a large number of persons in several countries (see Higher Regional Court Munich, Ref. No.: OLG Ausl 262/09).
Since the offences are identical, Art. 8 D-USA AusIVertrG (extradition treaty Germany/USA) / Art. 9 EurAuslÜbk (European Convention on Extradition) precludes the extradition of the persecuted person. The wording of the provision stipulates that extradition shall not be granted in cases where the person pursued has already been finally acquitted or sentenced by the competent authorities of the extradition requested State (Germany) for the offence for which extradition is requested (by the USA). This would require that the persecuted person would have been finally sentenced by a German court, which is not the case. The persecuted person was legally convicted by an Italian court (Milan) on 8 January 2013.
The Senate is, however, because of Germany’s responsibility under European law in relation to Italy, obliged to recognise the conviction of the persecuted person as an obstacle to extradition to a third country (USA). This follows from rulings of the European Court of Justice, which rule out the applicability of Union law, and in particular of Art. 18 in connection with Art. 21 Treaty on the Functioning of the European Union (TFEU).
In its ruling of 6 September 2016 (Ref.: C-182/15, so-called “Petruhhin” ruling), the European Court of Justice determined that in the context of an extradition request from a third country an EU Member State must give priority to the exchange of information with the EU Member State of which the person being persecuted is a national in order to give the state of origin of the person being persecuted the opportunity to carry out the criminal prosecution of the person being persecuted itself when extraditing its citizens. The protection against extradition granted to an EU citizen in his or her home state must also be granted to him or her in this way in other EU Member States, as this is the only way to ensure that the freedom of movement of an EU citizen within the Union is not unduly restricted.
In its ruling of 10 April 2018 (Ref.: C-191/16, so-called “Pisciotti” ruling), the European Court of Justice once again underlined this principle and extended it to cases in which the requested EU Member State has concluded an international agreement with a third country with regard to extradition – as in the present case of Germany with the USA. According to this agreement, the following principle applies: If an EU citizen – against whom a request for extradition to the USA is made – exercises his or her right to freedom of movement and is therefore arrested in another EU Member State for the possible execution of the request, the situation of this citizen falls within the scope of EU law. It would lead to inadmissible unequal treatment if an EU citizen could not be extradited in his or her home country pursuant to Art. 7 D-USA AusIVertrG (extradition treaty Germany/USA) if he or she were arrested there, but could be extradited if arrested in another EU Member State. In this case the requested State was consequently obliged to contact the home EU Member State of the person in order to enable the possiblity to prosecute the offender prior to extradition. This is the only way to ensure that an EU citizen has in every other EU state a comparable protection against extradition requests as in his or her home state and is therefore able to move freely within the EU.
A German citizen should not have been extradited to the USA due to the prohibition of double jeopardy pursuant to Art. 8 D-USA AusIVertrG (extradition treaty Germany/USA) if he had already been convicted in Germany for the same offence with final and absolute effect. Had the persecuted person been arrested in Italy as an Italian citizen, she would not have been extradited to the USA either. In order not to discriminate in an inadmissible manner against the persecuted person as an EU citizen in her freedom of movement within the EU pursuant to Art. 18 in connection with Art. 21 TFEU, the Senate considers itself prevented from extraditing the persecuted person because her home country – the EU member state Italy – has explicitly invoked the principle of “ne bis in idem” for that person. Since Italy has already persecuted the persecuted person for the identical offences (see above), the Senate is prevented from extraditing her to the USA because of the prohibition of double jeopardy. If the persecuted person had not yet been convicted, her home country Italy would have had to be given priority to prosecution over extradition. In the case of a conviction that has already become final, this must take priority over extradition. In this respect, the Senate is also bound in its relations with the Republic of Italy as an EU Member State by the provision of Art. 9 of the European Convention on Extradition, which also provides for the inadmissibility of extradition if there is a threat of double jeopardy.
In this respect as the charges 4, 5, 8 and 9 in the expanded bill of indictment of 24 May 2011 also refer to paragraphs 1 to 41 of charge 1 of that bill of indictment and paragraph 2 of charge 1 mentions the period from July 1999 to October 2007, which is not fully covered by the judgment of the court in Milan on 8 January 2013, the Senate also considers itself prevented from extraditing the persecuted person.
In its paragraphs 1 to 41, charge 1 does not contain any concrete accusations against the persecuted person, but merely describes the procedure of the group in general terms and names the respective members and their roles within the group. On the other hand, no concrete criminal offences of the persecuted person are mentioned that could form the basis of an extradition.
Since the extradition of the persecuted persons is inadmissible for the above-mentioned reasons, the arrest warrant of 2 March 2020 also had to be revoked.