Re Neumann

Docket NumberCase No. 188
Date18 juin 1921
CourtFederal Supreme Court (Switzerland)
Switzerland, Federal Court.
Case No. 188
In re Neumann.

Extradition — Extradition of Nationals — Resumption of Criminal Prosecution against German Citizen in the Canton where the Offence was Committed (Canton of Thurgau) after the Request to Take up Proceedings was Refused by the German Authorities.

The Facts.—Fritz Neumann, a German citizen, formerly resident in the Canton of Thurgau (Switzerland), was indicted for blackmail by the Criminal Prosecutor of that Canton. As he had in the meantime transferred his residence to Germany (Baden), the Governing Council of Thurgau through the Swiss Department of Justice asked the German authorities to take over the criminal proceedings. The request was refused on the ground of the German Amnesty Decree of 7 December, 1918, in favour of persons who participated in the war. The Criminal Prosecutor of Thurgau then decided to resume proceedings against the accused, who was sentenced in contumaciam by the Kriminalkammer of Thurgau to hard labour, banishment from the country for life, and restitution of the money extorted. Counsel for Neumann appealed to the Federal Court on the ground of the violation of the German-Swiss Extradition Treaty.1 The violation of the Treaty consisted, in his opinion, in the fact that the accused was prosecuted in the Canton of Thurgau notwithstanding the amnesty granted in his home State. As, according to Article 2 of that Treaty,2 it was not admissible to extradite the accused, the Canton of Thurgau was, it was urged, bound to hand over the question of punishment to the home State and to put up with the manner in which that home State disposed of the prosecution.

Held: That the appeal must be dismissed. The provision of Article 2, paragraph 1, of the German-Swiss Extradition Treaty exempting the nationals of the contracting parties from extradition is an exception from the reciprocal engagement to extradite persons who are prosecuted or have been sentenced for an extraditable offence in one State whilst resident in the territory of the other. The effect of this provision is merely to confer upon the prosecuted or convicted person a claim against his own State not to be extradited. It does not confer upon the home State a right to prosecute; neither does it impose an obligation on the requesting State (which is generally the State where the offence was committed) not to...

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