Overview
The Republic of San Marino (Serenissima Repubblica di San Marino) is an enclave entirely surrounded by Italy and a functioning constitutional state with its own judiciary. In extradition relations with the Federal Republic of Germany there is no treaty-less situation; rather, a common basis in international law applies: both states are contracting parties to the European Convention on Extradition of the Council of Europe of 13 Dec 1957 (ECE, ETS No. 24). San Marino has been a member of the Council of Europe since 16 Nov 1988. San Marino is not a member of the European Union; the European Arrest Warrant does not apply, nor does the SIS alert.
The volume of extradition traffic between Germany and San Marino is very low. Practical relevance arises less from classic violent crime than from San Marino's historical significance as a financial and banking center: the focus is on economic, financial, tax and money-laundering offenses. In addition, there is the close judicial interconnection with Italy — anyone prosecuted in San Marino is frequently also the subject of Italian investigations, which raises questions of competing requests, the rule of specialty and the prohibition of double jeopardy (ne bis in idem).
From a human-rights perspective, San Marino is unremarkable: the death penalty was abolished in the 19th century, detention conditions are uncritical, and there is no apparent political persecution. The defense in San Marino constellations therefore shifts to the procedural bars: dual criminality (in particular for tax and fiscal offenses), the blocking effect of Article 16(2) of the Basic Law for German citizens, observance of the rule of specialty, and the demarcation from parallel Italian proceedings.
Legal basis
On the German side, extradition is governed by the European Convention on Extradition (ECE) as the primary basis in international law; supplementarily, and for domestic implementation, the Act on International Mutual Legal Assistance in Criminal Matters (IRG) of 23 Dec 1982 applies (Section 1(3) IRG: precedence of agreements under international law). The ECE governs, among other things, the extraditable offenses (Article 2 — a minimum penalty threshold of one year), the exclusion of political offenses (Article 3) and fiscal offenses (Article 5 in its original version), and the rule of specialty (Article 14).
For German nationals, extradition to San Marino remains excluded under Article 16(2) of the Basic Law in conjunction with Section 80 IRG; the relaxation under Section 80 IRG, which permits the extradition of Germans subject to certain conditions, applies exclusively to EU member states, of which San Marino is not one. This blocking effect also applies to dual nationals holding German citizenship (cf. BVerfGE 113, 273). Conversely, San Marino may invoke its right not to extradite its own nationals (Article 6 ECE).
On the Sammarinese side, substantive criminal law is set out in the Codice penale; criminal procedure follows its own rules of procedure but is historically closely modeled on the Italian legal tradition. In inter-state relations, the Ministry of Justice (Segreteria di Stato per la Giustizia) is competent, in coordination with the Ministry of Foreign Affairs. On the German side, the Higher Regional Courts decide on admissibility (Sections 13 ff. IRG); the granting decision is made by the General Public Prosecutor's Offices, and in cases of fundamental importance by the Federal Office of Justice. Under Article 2 ECE and Section 3 IRG, the decisive criterion is dual criminality — the offense must be punishable under both German and Sammarinese law by a maximum custodial sentence exceeding one year.
Country-specific issues in San Marino
Death penalty — fully abolished since the 19th century: San Marino is among the pioneer states in abolishing the death penalty. It was abolished for ordinary offenses as early as 1848 and for all offenses in 1865 — making San Marino one of the first states in the world, and the first in Europe, to abolish the death penalty entirely. The last execution dates to the 15th century (1468). A bar to extradition under Section 8 IRG is therefore practically out of the question in San Marino constellations; this otherwise central point of review falls away.
Rule of law and judicial interconnection with Italy: San Marino is a functional constitutional state with an independent judiciary, a member of the Council of Europe and subject to the Convention for the Protection of Human Rights (ECHR). Political persecution within the meaning of Section 6 IRG / Article 3 ECE is not apparent. What is significant, however, is the factual and legal proximity to Italy: owing to its geographical position as an enclave, there are close cooperation and mutual-legal-assistance relationships, and Sammarinese proceedings frequently run in parallel with Italian investigations. From this follows the need to examine competing requests (Article 17 ECE) and a possible blocking effect under Section 9 IRG / Article 9 ECE (ne bis in idem) at an early stage.
Economic, financial and tax offenses as the focus: For decades San Marino was known as a banking and financial center with pronounced bank secrecy and was repeatedly the subject of international measures against tax evasion and money laundering. Only after several reform steps (including agreements with Italy and the EU on tax transparency and the automatic exchange of information) was San Marino removed from the relevant "grey lists." In extradition practice, this means that requests frequently arise for tax evasion, money laundering, breach of trust or fraud. Here, dual criminality must be examined with particular care: pure tax, customs and currency offenses are subject to the special rules for fiscal offenses (Article 5 ECE and its Second Additional Protocol), and not every Sammarinese offense definition has a congruent counterpart in German law.
Interpol and provisional arrest: Even in relations with a small state that is unremarkable from a rule-of-law standpoint, an arrest may be made on the basis of an Interpol notice (Red Notice or diffusion) before a formal extradition request is on file (Article 16 ECE — provisional extradition detention). The review therefore regularly begins not only with the formal request but already at the point of arrest. There are no indications of an abuse of the Interpol system by San Marino; nonetheless, the lawfulness and proportionality of the notice must be reviewed in the individual case.
Detention conditions and the human-rights review
San Marino has only a single, very small detention facility with a low capacity (in the low double digits). A particular feature is that most persons sentenced to custodial terms serve their sentence not in San Marino itself but, on the basis of an agreement, in Italian prisons; the Sammarinese facility essentially serves for short-term accommodation and pre-trial detention. The European Committee for the Prevention of Torture (CPT) most recently visited San Marino in September 2022 and found no indications of ill-treatment.
A human-rights review under Section 73 sentence 1 IRG in conjunction with Article 3 ECHR, or under the Aranyosi/Căldăraru standard (ECJ C-404/15 and C-659/15 PPU — to be applied as a standard of review even outside the European Arrest Warrant), regularly leads to no bar to extradition in the case of San Marino. However, since the enforcement of a sentence is frequently relocated to Italy, the detention situation in Italian facilities may become indirectly relevant in the individual case; in this respect, the case law on the structural overcrowding of the Italian prison system (ECtHR, Torreggiani and Others v. Italy, 8 Jan 2013) must be taken into account where there is a concrete risk of accommodation in an overcrowded Italian facility.
Consular assistance is provided through the competent German diplomatic mission on the basis of the Vienna Convention on Consular Relations of 24 Apr 1963 (VCCR). Overall, the human-rights dimension is of subordinate importance in San Marino proceedings; the focus of the defense clearly lies on the procedural and substantive-law requirements for extradition.
Lines of defense
The defense in San Marino extradition proceedings should be structured around procedure and the type of offense; human-rights bars recede into the background. Review framework:
- Article 16(2) of the Basic Law in conjunction with Section 80 IRG (extradition of Germans): Where there is German citizenship — including for dual nationals holding a German passport — extradition to San Marino is excluded; Section 80 IRG applies only to EU states.
- Section 3 IRG / Article 2 ECE (dual criminality): Regularly the load-bearing point of review. For economic, breach-of-trust and fraud offenses, a careful mirror-image examination is required; Sammarinese offenses without a German counterpart are not extraditable.
- Article 5 ECE / fiscal offenses: Pure tax, customs and currency offenses are subject to special rules (Article 5 ECE and the Second Additional Protocol). Extraditability must be examined separately.
- Section 9 IRG / Article 9 ECE (ne bis in idem): Where there are parallel Italian or German investigations into the same offense, the blocking effect must be examined — in view of the close interconnection with Italy, this is frequently relevant in practice.
- Article 17 ECE (competing requests): Where there are simultaneous requests from San Marino and Italy (or further states), the sequence and order of precedence must be clarified at an early stage; effects on specialty and re-extradition must be observed.
- Section 11 IRG / Article 14 ECE (rule of specialty): Securing the limitation of prosecution to the offenses granted; supplementary requests and re-extradition to Italy only with separate consent.
- Article 3 ECE / Section 6 IRG (political offense): As a rule not applicable, but to be examined as standard in case the request has a political background.
- Section 73 sentence 1 IRG in conjunction with Article 3 ECHR (detention conditions): Uncritical for San Marino itself; relevant only insofar as there is a concrete risk of enforcement of a sentence in an overcrowded Italian facility (cf. ECtHR Torreggiani v. Italy).
- Article 16 ECE (provisional extradition detention): An arrest is possible already on the basis of an Interpol Red Notice; early assumption of the mandate, access to the file and review of the proportionality of the detention.
- Constitutional complaint with an urgent application (Section 32 BVerfGG): Following a declaration of admissibility by the OLG, this is the standard remedy where fundamental rights are violated — for example, in the event of an erroneous assessment of dual criminality or of specialty.
Legal representation in San Marino extradition proceedings
An extradition case is a specialized mutual-legal-assistance procedure that goes beyond classic criminal defense. Engaging a defense lawyer specialized in extradition law at an early stage is regularly decisive — not only after the formal extradition arrest warrant has been issued, but already from the moment of an arrest based on an Interpol notice, an SIS alert or a European Arrest Warrant.
As a Certified Specialist in Criminal Law with a focus on extradition law, I advise and represent affected persons nationwide before the competent Higher Regional Courts and in constitutional complaint proceedings before the Federal Constitutional Court.