On June 26, 2019, the Higher Regional Court (OLG) of Düsseldorf (4 AuslE 16/19), in response to our immediate appeal, overturned an order of the Chamber of the Düsseldorf Regional Court (Strafvollstreckungskammer) ordering the execution of an Italian decision rendered in absentia in Germany. In the so-called "exequatur proceedings", the Chamber of Enforcement at the Regional Court decides on the enforcement of foreign criminal judgments in Germany; the Higher Regional Court is the Appeals Court.

Absentee judgments from other European countries - in which the sentenced persons did not appear personally at the court hearing on which the judgment is based - have already occupied German courts by the dozen. A central question here is which court hearing is important if the judgment was heard in several instances in the European member state.   What if the convicted person was still present at the first instance but no longer at the second or third instance?

German criminal lawyer on absentee judgments from other European countries

84b para. 1 no. 2 German IRG says that enforcement is not admissible if the sentenced person did not appear personally at the trial on which the judgment is based. Following the "Tupikas" decision of the European Court of Justice - C-270/17 PPU, the admissibility of the enforcement of the foreign criminal judgment depends on the instance which last led to a re-examination of the facts in fact and in law before the judgment became final and the convicted person was found guilty and sentenced to imprisonment. And then it depends on whether the convicted person really had knowledge of the concrete court hearing or the concrete hearing date with regard to the last instance of the facts. A notification of the criminal defence lawyer is not even sufficient to assume an effective acquisition of knowledge if there is no escape case within the meaning of §84b para. 3 no. 2 German IRG.

The enforcement of foreign criminal judgments in the Federal Republic of Germany in enforcement assistance transactions with a member state of the European Union is governed by §§ 84 et seq. of the German IRG.

An application for assumption of enforcement of a sentence initially fulfils the formal requirements if it uses the fully completed certificate (§ 84c para. 1 German IRG) provided for in the Framework Decision on Prison Penalties (§ 84 para. 2 no. 2 German IRG) and transmits the criminal judgment - both in a certified copy and in German. In addition, the mandatory admissibility requirements of §§ 84a and 84b of the German IRG must be met. The custodial sentence imposed in the member state must be final and enforceable within the meaning of § 84a para. 1 no. 1 German IRG and the acts committed by the European member state must also be punishable under German law (§ 84a para. 1 no. 2 German IRG). The condition of double criminality is deemed to have been fulfilled in the enforcement of foreign criminal judgments if the facts as set out in the judgment issued by the competent authority of the issuing State were, as such, also subject to a criminal sanction in Germany if they had occurred here. According to the correct view, the characteristic of double criminality may only be examined on the basis of the content of the judgment transmitted. Often, supplementary information provided by the sentencing state may not be used to the detriment of a sentenced person.

The consent of the convicted person to enforcement in Germany is not required under § 84a German IRG - at least for German citizens, and possibly also for foreigners.