Judgment — ECLI:EU:C:2023:1030
Date: 2023-12-21
Language of the case: German
Court formation: Seventh Chamber
Subject matter: Judicial cooperation in criminal matters;Police cooperation;Area of freedom, security and justice;Judicial cooperation in civil matters
Procedure: Reference for a preliminary ruling
Origin: Germany

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Translation C-397/22 – 1 
Case C-397/22 
Request for a preliminary ruling 
Date lodged: 
15 June 2022 
Referring court: 
Kammergericht (Berlin, Germany) 
Date of the decision to refer: 
14 June 2022 
Applicant: 
Generalstaatsanwaltschaft Berlin 
  
KAMMERGERICHT (HIGHER REGIONAL COURT, BERLIN) 
Order 
[…] 
In the extradition case concerning 
the Polish national LM, […] whose place of residence is currently unknown, 
the Fourth Criminal Chamber of the Higher Regional Court, Berlin, made the 
following order on 14 June 2022: 
The following questions are referred to the Court of Justice of the European 
Union for a preliminary ruling pursuant to Article 267 TFEU: 
1. In the case where a summons is served on an adult member of the 
addressee’s household, is Article 4a(1)(a)(i) of Framework Decision 
2002/584/JHA, as amended by Framework Decision 2009/299/JHA, still to 
be interpreted as meaning that the issuing judicial authority must prove that 
the person concerned actually received the summons, or is that provision to 
EN 
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be interpreted as meaning that service on the adult member of the 
addressee’s household proves actual knowledge where the person concerned 
does not plausibly demonstrate that (and explain why) he or she did not 
obtain knowledge of the summons? 
2. Where appeal proceedings have been conducted, is the concept of 
‘trial’ in Article 4a(1) of Framework Decision 2002/584/JHA, as amended 
by Framework Decision 2009/299/JHA, to be interpreted as relating to the 
trial which preceded the decision at first instance if only the requested 
person lodged an appeal and it was dismissed without examination of the 
merits? 
3. Is it compatible with the primacy of EU law for the German legislature 
to have configured the case of conviction in absentia as an absolute 
impediment to surrender in Paragraph 83(1)(3) of the Gesetz über die 
internationale Rechtshilfe in Strafsachen (Law on international mutual legal 
assistance in criminal matters), even though Article 4a(1) of Framework 
Decision 2002/584/JHA, as amended by Framework Decision 
2009/299/JHA, provides only for an optional ground for refusal in that 
regard? 
G r o u n d s: 
1 A. Facts 
1. By European arrest warrant issued by the Sąd Okręgowy w Poznaniu ([…] 
[Regional Court], Poznań) on 26 July 2021 […], the Polish authorities seek the 
surrender of the requested person for the purpose of executing the custodial 
sentence of 6 months deriving from the judgment of the Sąd Rejonowy w Pile 
([…] [District Court], Piła) of 25 February 2020 […], of which 5 months and 
29 days remain to be executed. 
2 The requested person was found guilty of having driven a vehicle while under the 
influence of alcohol, his breath alcohol concentrations being measured at 1.29 
mg/l, 1.35 mg/l, 1.30 mg/l, 1.32 mg/l and 1.23 mg/l, in Piła on 27 May 2019 […]. 
3 2. The requested person did not take part in the hearing at first instance 
before the […] District Court], Piła, or the appeal hearing before the […] 
[Regional Court], Poznań, which dismissed his appeal without examination of the 
merits by judgment of 16 June 2020. No defence lawyer participated in the 
proceedings. 
4 In his examination conducted on 28 May 2019, the requested person had provided 
an address in Slawno as his permanent place of residence and address for service. 
In that respect, he was informed of the obligation (arising from Article 75(1) of 
the Kodeks postępowania karnego [Polish Code of Criminal Procedure; ‘the 
kpk’]) to inform the investigating authorities of changes of his address. 
Article 75(1) of the kpk is worded as follows: 
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If the accused person remains at liberty, he or she is obliged to appear in 
response to any summons in the course of the criminal proceedings and to 
notify the authority conducting the proceedings of any change, of a duration 
exceeding seven days, of his or her address or place of residence; the 
accused person shall be informed of those obligations at the first hearing. 
5 The requested person was summoned to appear before the […] [District Court], 
Piła, by service at that address and, according to the information provided by that 
court on 8 October 2021, he received the summons in person on 14 January 2020. 
It is true that that information contradicts the statement in the European arrest 
warrant that the summons had been served ‘by way of two notices’. However, the 
present Chamber considers that information to be correct, since the requested 
person had knowledge of the trial and his conviction. This is because, by letter of 
28 February 2020 (received by the […] [District Court] on 4 March 2020), he 
requested the written statement of the reasons for the judgment (Article 422 of the 
kpk), again providing the address […] [referred to in paragraph 4]. After being 
served with the statement of reasons for the judgment, he lodged an appeal, 
acceptance of which – as evidenced by the communication of the […] [District 
Court], Piła, of 17 September 2021 – was notified to him by a letter sent to that 
address, of which he personally took receipt on 22 April 2020. 
6 However, the summons to the appeal hearing, which was also sent to […] [that] 
address […], was not received by the requested person in person. Rather, it was 
handed to the requested person’s cohabiting partner, and mother of their child, on 
8 May 2020. The Polish authorities were unable to provide evidence that the 
requested person had received the summons from his cohabiting partner. 
However, in its notification of 8 October 2021, the […] [District Court], Piła, 
stated that the requested person not only indicated the abovementioned address in 
the proceedings, but also carried out commercial activities at that address. 
7 3. The requested person was provisionally arrested pursuant to the European arrest 
warrant in Berlin on 25 August 2021, in accordance with Paragraph 19 of the 
Gesetz über die internationale Rechtshilfe in Strafsachen (Law on international 
mutual legal assistance in criminal matters; ‘the IRG’). At his judicial hearing 
held in accordance with Paragraphs 22 and 28 of the IRG by the investigating 
judge of the Amtsgericht Tiergarten (Local Court, Tiergarten) in Berlin on the day 
following his arrest, he declared himself unwilling to consent to simplified 
extradition (Paragraph 41(1) of the IRG; Article 13 of Framework Decision 
2002/584/JHA) and did not renounce entitlement to the speciality rule (Article 27 
of Framework Decision 2002/584/JHA). The present Chamber ordered that the 
requested person be detained pending extradition by order of 1 September 2021. 
8 After the […] [District Court], Piła, by letter of 17 September 2021, had, at the 
request of the Generalstaatsanwaltschaft Berlin (General Prosecutor’s Office in 
Berlin), provided details of the specific circumstances of the summoning of the 
requested person, that office, citing the judgment of the Court of Justice of 
10 August 2017, C-270/17 PPU (EU:C:2017:628), requested that the arrest 
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warrant issued for the purposes of extradition be cancelled and the surrender of 
the requested person to the Republic of Poland be declared to be impermissible. 
The General Prosecutor’s Office in Berlin stated that there is an impediment to 
surrender under Paragraph 83(1)(3) of the IRG. In that regard, Paragraph 83 of the 
IRG, which transposes Article 4a of Framework Decision 2002/584/JHA, as 
amended by Framework Decision 2009/299/JHA, into national law, is worded as 
follows: 
(1) Extradition shall not be permissible where 
1. … 
2. … 
3. in the event of a request for the purpose of executing a sentence, the 
convicted person did not appear in person at the hearing of the trial which 
resulted in the conviction, or 
4. … 
(2) Notwithstanding subparagraph (1)(3), extradition shall, however, be 
permitted where 
1. the convicted person 
(a) in due time 
(aa) was summoned in person to the trial which resulted in the conviction 
or 
(bb) actually received, by other means, official information of the 
scheduled date and place of that trial in such a manner that it was 
unequivocally established that the convicted person was aware of the 
scheduled trial; and 
(b) was informed that a decision may also be handed down in his or her 
absence, 
2. the convicted person, being aware of the proceedings against him or 
her, and in which a defence lawyer participated, prevented a summons in 
person through absconding or 
3. the convicted person, being aware of the scheduled trial, gave a 
mandate to a lawyer to defend him or her at the trial, and was indeed 
defended by that lawyer at the trial. 
(3) Notwithstanding subparagraph (1)(3), extradition shall also be 
permitted where the convicted person, after being served with the judgment, 
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1. expressly stated that he or she would not challenge the judgment 
handed down or 
2. did not request a retrial or appeal within the applicable time frames. 
The convicted person must have been expressly informed in advance of his 
or her right to a retrial, or an appeal, in which the person has the right to 
participate and which allows the merits of the case, including fresh evidence, 
to be re-examined, and which may lead to the original decision being 
reversed. 
(4) Notwithstanding subparagraph (1)(3), extradition shall also be 
permitted where the convicted person will be personally served with the 
judgment immediately after his or her surrender to the requesting Member 
State and he or she will be informed of his or her right to a retrial or appeal 
as referred to in the second sentence of subparagraph (3) and of the time 
limits applicable thereto. 
9 By order of 24 September 2021, the present Chamber cancelled the arrest warrant 
for the purposes of extradition which it had issued in respect of the requested 
person, who had already been released from custody by order of the General 
Prosecutor’s Office of 22 September 2021. The present Chamber deferred ruling 
on the request that the surrender be declared to be impermissible, in order to 
obtain clarification regarding the questions raised by the present order. 
10 4. The condition of double criminality, to which surrender is subject, is met. 
11 B. Grounds for the questions referred 
1. The decision on the question as to whether there is an impediment to surrender 
pursuant to Paragraph 83(1)(3) of the IRG with regard to the appeal hearing, the 
hearing which is relevant pursuant to the judgment of the Fifth Chamber of the 
Court of Justice of 10 August 2017, C-270/17 PPU, depends on whether the 
service of the summons effected by the latter being handed over to the cohabiting 
partner of the requested person is to be regarded as constituting sufficient 
notification of the hearing for the purposes of Paragraph 83(2)(1)(a)(bb) of the 
IRG or Article 4a(1)(a)(i) of Framework Decision 2002/584/JHA, as amended by 
Framework Decision 2009/299/JHA. Doubts arise in so far as the Fourth Chamber 
of the Court ruled, in its judgment of 24 May 2016, C-108/16 PPU 
(EU:C:2016:346), that service of a summons effected by the latter being handed 
over to an adult in the addressee’s household is sufficient only if it can be 
ascertained from the European arrest warrant whether and, if so, when that adult 
actually passed that summons on to the requested person. The General 
Prosecutor’s Office in Berlin – without expressly citing the judgment – appears to 
take that as the basis for its request that the surrender be declared to be 
impermissible. 
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12 However, the present Chamber takes the view that the interpretation of 
Article 4a(1)(a)(i) of Framework Decision 2002/584/JHA, as amended by 
Framework Decision 2009/299/JHA, given by the Fourth Chamber of the Court of 
Justice is not to be followed in cases where a summons is handed over to an adult 
in the addressee’s household. In the view of the present Chamber, the Fourth 
Chamber of the Court of Justice does not sufficiently take into account the fact 
that, first, in the context of the relationship between adult members of a 
household, it must generally be assumed that they pass on to other members of 
that household delivered items intended for them, and, second, the prosecuting 
authorities are precluded from gaining an insight into the inner workings of a 
household, with the result that they will generally not be in a position to prove that 
an item has actually been passed on. The decision of the Fourth Chamber of the 
Court of Justice therefore leads to the position that summonses that are de iure 
effective under national law – German law also provides for service of a 
document effected by the latter being handed over to adults in the addressee’s 
household (Paragraph 37 (1) of the Strafprozeßordnung [Code of Criminal 
Procedure; ‘the StPO’], in conjunction with Paragraph 178(1)(1) of the 
Zivilprozessordnung [Code of civil procedure, ‘the ZPO’]) and regards such 
service as preferable to service by placing in a mailbox (Paragraph 180 of the 
ZPO) – cannot de facto lead to removal of the impediment to surrender in the case 
of a conviction in absentia. 
13 It is true that the Fourth Chamber of the Court of Justice is to be agreed with in so 
far as Article 4a(1)(a)(i) of Framework Decision 2002/584/JHA, as amended by 
Framework Decision 2009/299/JHA, must be interpreted as meaning that the 
executing judicial authority is able to conclude that the rights of the defence were 
respected in the proceedings in the convicting State (loc. cit., paragraph 38), and 
that proof of actual knowledge of the summons is required in that regard (loc. cit., 
paragraph 47). However, the present Chamber considers that such proof is 
established in the case where a document is served on an adult member of the 
addressee’s household, provided that there is no evidence that, contrary to the 
practice which is generally assumed to exist among cohabitants, the member of 
the household accepting the document did not pass it on to the addressee in an 
exceptional case. The present Chamber considers that the burden of asserting and 
presenting such an exceptional case lies with the requested person, who, generally 
speaking, is the only person capable of asserting and presenting such a case – 
unlike the prosecuting authorities as regards the opposite case. 
14 The present Chamber therefore asks: 
[Question 1 repeated, with slightly different wording] […] 
15 2. a) If the service of the summons to the appeal hearing effected by way of being 
handed over to the cohabiting partner of the requested person does not satisfy the 
requirements of Article 4a(1)(a)(i) of Framework Decision 2002/584/JHA, as 
amended by Framework Decision 2009/299/JHA, due to the absence of proof of 
actual receipt by the requested person, the follow-up question arises as to whether 
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the appeal hearing or the hearing at first instance to which the requested person 
had been summoned in person, and with regard to which an impediment to 
surrender therefore does not exist, is decisive for the purpose of examining an 
impediment to surrender pursuant to Paragraph 83(1)(3) of the IRG. 
16 b) By judgment of 10 August 2017, C-270/17 PPU, the Fifth Chamber of the 
Court of Justice ruled that, in the case of a criminal procedure involving several 
degrees of jurisdiction, the ‘trial resulting in the decision’, within the meaning of 
Article 4a(1) of Framework Decision 2002/584/JHA, as amended by Framework 
Decision 2009/299/JHA, is to be understood as the trial which finally rules on the 
guilt of the requested person concerned and imposes a penalty on him or her 
following a (re-)examination, in fact and in law, of the merits of the case, that is to 
say, the most recent hearing of a court ruling on the merits. 
17 On the basis of that interpretation of Article 4a(1) of Framework Decision 
2002/584/JHA, as amended by Framework Decision 2009/299/JHA, the relevant 
trial in the present case would have to be the appeal hearing before the […] 
[Regional Court], Poznań, in which the requested person did not participate and to 
which he was not summoned in a manner that satisfies the requirements of the 
judgment of the Fourth Chamber of the Court of Justice of 24 May 2016, 
C-108/16 PPU. Surrender would therefore have to be refused. 
18 c) However, the present Chamber has doubts as to whether the judgment of the 
Fifth Chamber of the Court of Justice is also to be followed where – as in the 
present case – the requested person was summoned in person to the trial at first 
instance in a manner which eliminates the impediment to surrender, but thereafter 
frustrated – inasmuch as such frustration cannot be entirely ruled out – his or her 
summons to the hearing in the appeal, which had been lodged (only) by him or 
her. 
19 Those doubts result, first, from the fact that the legal situation of an accused 
person under German law of criminal procedure in a comparable case would be 
less favourable than it would be under Polish law. Under German law also, service 
of a summons to an accused person at his or her home address would be effective 
irrespective of actual notice; if it were to transpire that the accused person no 
longer resides at the address which he or she most recently provided, with the 
result that a summons to the appeal hearing cannot be served on him or her at that 
address, the summons could be served by way of public notice without further 
investigations into his or her whereabouts (Paragraph 40(3) of the StPO). If the 
accused person is absent from the appeal hearing and is also not represented by 
defence counsel at that hearing, his or her appeal must be dismissed without a 
hearing on the merits (first sentence of Paragraph 329(1) of the StPO). This is the 
case even if the judgment under appeal is manifestly erroneous. By contrast, in 
Polish criminal procedure, an examination on the merits takes place even if the 
accused person is absent from the appeal hearing. 
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20 In accordance with the interpretation given by the Fifth Chamber of the Court of 
Justice, a judgment under German law dismissing an appeal without examination 
of the merits would, as judgment on purely procedural grounds in which a review 
of the finding of guilt and the operative part does not take place, not be covered by 
the concept of ‘trial’ in Article 4a(1) of Framework Decision 2002/584/JHA, as 
amended by Framework Decision 2009/299/JHA, with the result that there would 
no ground for refusal of surrender. The view that the judgment on the merits 
delivered under Polish law in an otherwise identical factual situation despite the 
absence of the accused person should give rise to the possibility of finding such a 
ground for refusal does not appear to be convincing. 
21 Second, the outcome of the judgment of the Fifth Chamber of the Court of Justice 
also gives rise to doubts on the part of the present Chamber because, in the case 
where an appeal is dismissed in full without examination of the merits, the 
judgment at first instance becomes final and forms the basis for enforcement, with 
the result that that judgment – and not the judgment on the appeal – is the decision 
for whose enforcement surrender is sought. 
22 The present Chamber understands the concept of ‘decision’ in Article 4a(1) of 
Framework Decision 2002/584/JHA, as amended by Framework Decision 
2009/299/JHA, to refer to the preceding phrase ‘for the purpose of executing a 
custodial sentence or a detention order’ in the same paragraph, that is to say, to the 
decision to be enforced. The interpretation given by the Fifth Chamber of the 
Court of Justice, whereby the relevant trial is that which resulted in the decision 
on the appeal – which is not to be enforced – would not be consistent with this. 
That interpretation is also at odds with the use of the term ‘decision’ in recitals 4, 
6, 7 and 10 of Framework Decision 2009/299/JHA, which each refer to the 
decision to be enforced – and therefore, in the case where an appeal is dismissed 
without examination of the merits, to the decision at first instance which has 
become final and enforceable. 
23 d) The Fifth Chamber of the Court of Justice based its interpretation of the 
concept of ‘trial’ in Article 4a(1) of Framework Decision 2002/584/JHA, as 
amended by Framework Decision 2009/299/JHA, on the case-law of the ECtHR 
concerning Article 6(1) of the ECHR (see the references in paragraph 79 of the 
judgment of 10 August 2017). 
24 In each of the decisions cited by the Fifth Chamber, the ECtHR examined a 
conviction in appeal proceedings conducted in absentia from the angle of an 
alleged infringement of Article 6(1) of the ECHR. In that respect, it emphasised 
that it is true that Article 6(1) of the ECHR does not oblige the Contracting States 
to create a system of remedies. However, where such a system is provided for in 
national law, the guarantees under Article 6 of the ECHR must also be taken into 
account in appeal proceedings. This includes the right of the accused person to be 
heard in appeal proceedings, in which the charges are examined in fact and in law, 
and a fresh decision must be taken on both the guilt of the accused person and the 
legal consequence to be imposed. 
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25 However, the ECtHR has also emphasised that personal attendance does not take 
on the same crucial significance for an appeal hearing as it does for the trial 
hearing (see Hermi v. Italy, judgment of 18 October 2006, no. 18114/02 
[CE:ECHR:2006:1018JUD001811402], § 60). In the abovementioned decision 
cited by the Fifth Chamber of the Court of Justice, the ECtHR found that there had 
not been a violation of Article 6 of the ECHR. The accused person, who had been 
given a custodial sentence at first instance and had been remanded in custody 
pending trial, had been informed of the date of the appeal hearing but had not been 
brought before the appellate court because he had not requested this – as would 
have been necessary under Italian law. Therefore, a request by his chosen defence 
counsel, which was not made until during the hearing, asking that the appeal 
hearing be adjourned for the purpose of hearing the accused in person was refused 
by the appellate court. 
26 Two further decisions of the ECtHR cited by the Fifth Chamber of the Court of 
Justice concerned proceedings in which, on appeal by the public prosecutor’s 
office, the judgment at first instance was varied to the detriment of the accused 
person and his appeal was dismissed (Zahirović v. Croatia, judgment of 25 April 
2013, no. 58590/11 [CE: ECHR:2013:0425JUD005859011]; Hokkeling v. the 
Netherlands, judgment of 14 February 2017, no. 30749/12 
[CE:ECHR:2017:0214JUD003074912]). In both cases, the respective accused 
person requested that he attend the appeal hearing in person, but both requests 
were refused by the respective appellate court. In Zahirović v. Croatia, the 
appellate court did not consider that the attendance of the accused person, who 
had been remanded in custody pending trial, was expedient. In Hokkeling v. the 
Netherlands, at the time of the appeal hearing the accused person was remanded in 
custody pending trial in Norway; the appellate court had refused to wait until he 
was no longer remanded in custody. 
27 In Ekbatani v. Sweden (judgment of 26 May 1988, no. 10563/83 
[CE:ECHR:1988:0526JUD001056383]), the ECtHR had found that there was a 
violation of Article 6(1) of the ECHR in a case where the appeal proceedings were 
conducted by written procedure without an oral hearing, and requests by the 
accused person and sole appellant seeking an oral hearing and the examination of 
witnesses were refused. The present Chamber notes that Article 4a(1) of 
Framework Decision 2002/584/JHA, as amended by Framework Decision 
2009/299/JHA, is unlikely to be applicable to that case, because no hearing was 
held in the appeal proceedings. 
28 Although the last of the judgments of the ECtHR cited by the Fifth Chamber of 
the Court of Justice (Kudła v. Poland, judgment of 26 October 2000, no. 30210/96 
[CE:ECHR:2000:1026JUD003021096]) emphasises the applicability of 
Article 6(1) of the ECHR in appeal proceedings also, it does not deal with a 
conviction in absentia, but with the question of concluding proceedings within a 
reasonable time. 
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29 Accordingly, in the judgments relied on by the Fifth Chamber of the Court of 
Justice (with the exception of Kudła v. Poland), the ECtHR addresses the right to 
be present in appeal proceedings, as deriving from Article 6(1) of the ECHR, in 
various situations. However, the present Chamber takes the view that it does not 
have to be inferred from those decisions – as shown in particular by the judgment 
in Ekbatani v. Sweden – that the concept of ‘trial’ in Article 4a(1) of Framework 
Decision 2002/584/JHA, as amended by Framework Decision 2009/299/JHA, is 
to be interpreted in the manner found by the Fifth Chamber, contrary to the 
wording of the recitals of Framework Decision 2009/299/JHA. 
30 e) If, in line with the view taken by the present Chamber, the concept of ‘trial’ in 
Article 4a(1) of Framework Decision 2002/584/JHA, as amended by Framework 
Decision 2009/299/JHA, is understood to refer, in the case where an appeal is 
dismissed without examination of the merits, to the trial that preceded the first-
instance decision to be enforced, this does not mean that the requested person is 
bereft of rights in the surrender procedure. Rather, a refusal of the right to be 
heard or any other infringement of the principle of the right to a fair trial in the 
appeal proceedings would have to be examined in the light of Article 1(3) of 
Framework Decision 2002/584/JHA, as amended by Framework Decision 
2009/299/JHA, in conjunction with Article 6(3) of the Treaty on European Union 
and Article 6 of the ECHR, and, where appropriate, taken into account as an 
impediment to surrender. 
31 f) The present Chamber therefore asks: 
[Question 2 repeated] […] 
32 3. If Article 4a(1) of Framework Decision 2002/584/JHA, as amended by 
Framework Decision 2009/299/JHA, must be interpreted as meaning that the 
examination must relate to the appeal proceedings before the […] [Regional 
Court], Poznań, and if it must be assumed that the summons served on the 
requested person by being handed over to his cohabiting partner does not satisfy 
the requirements laid down in Article 4a(1)(a)(i) of that framework decision, the 
present Chamber would be required to find that there is an impediment to 
surrender pursuant to Paragraph 83(1)(3) of the IRG, in line with the request of 
the General Prosecutor’s Office in Berlin. 
33 However, in its judgment of 24 May 2016, C-108/16 PPU, the Fourth Chamber of 
the Court of Justice also held that the executing judicial authority may also take 
into account other circumstances that enable it to be assured that the surrender of 
the person concerned does not mean a breach of his or her rights of defence, in 
particular his or her conduct, whereby particular attention might be paid to any 
lack of diligence on the part of the person concerned in the exercise of his or her 
rights, notably where it transpires that he sought to avoid service (paragraphs 50 
and 51 of the judgment). The Fourth Chamber of the Court of Justice therefore 
takes into account the fact that – in accordance with recital 15 of Framework 
Decision 2009/299/JHA – Article 4a(1) of Framework Decision 2002/584/JHA, as 
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amended by Framework Decision 2009/299/JHA, prescribes only an optional 
ground for refusal in the case of a conviction in absentia, the assertion of which is 
at the discretion of the executing judicial authority (see also judgments of the Fifth 
Chamber of the Court of Justice of 10 August 2017, C-270/17 PPU, paragraph 96, 
and C-271/17, [EU:C:2017:629], paragraphs 106 and 107; judgment of the Fourth 
Chamber of the Court of Justice of 17 December 2020, C-416/20 PPU, 
[EU:C:2020:1042], paragraphs 51 and 52). 
34 However, Article 4a(1) of Framework Decision 2002/584/JHA, as amended by 
Framework Decision 2009/299/JHA, has not been transposed into national law in 
full in that regard. Paragraph 83(1)(3) of the IRG establishes an absolute obstacle 
to surrender, which does not apply only in the exceptional cases set out in 
Article 4a(1) of that framework decision and in the case – which had already been 
developed in the German case-law – that the requested person, being aware of the 
proceedings against him or her, and in which a defence lawyer participated, 
prevented a summons in person through absconding (Paragraph 83(2)(2) of the 
IRG). German law does not provide for a possibility for the executing judicial 
authority to exercise discretion. 
35 The present Chamber is precluded from applying that framework decision 
directly, as framework decisions do not have direct effect (see Court of Justice, 
judgment of 24 June 2019, C-573/17, [EU:C:2019:530], paragraph 69, in respect 
of the framework decisions which are relevant in the present case). However, it is 
obliged to interpret national law in conformity with the framework decision in 
order to achieve the result sought by that decision (see Court of Justice, loc. cit., 
paragraphs 72 and 73), but an interpretation contra legem is ruled out (see Court 
of Justice, loc. cit., paragraph 76). 
36 Therefore, it is not possible to interpret Paragraph 83(1)(3) of the IRG as meaning 
that, in examining the impediment to surrender, the present Chamber has a margin 
of discretion that goes beyond the exceptions under Paragraph 83(2) to (4) of the 
IRG. It is true that it would have to be considered whether the conduct of the 
requested person, who can no longer be contacted by the Polish court or is not 
responding to summonses, is to be regarded as ‘absconding’ within the meaning 
of Paragraph 83(2)(2) of the IRG. However, since the requested person was not 
represented by a defence lawyer, the application of that exception is also excluded 
on the basis of the clear wording of that law, which is not open to interpretation in 
that regard. 
37 If the present Chamber were entitled to take a decision in the exercise of its 
discretion as provided for in Article 4a(1) of Framework Decision 2002/584/JHA, 
as amended by Framework Decision 2009/299/JHA, it would consider the 
surrender of the requested person to be permissible. The requested person brought 
an appeal against the judgment at first instance, the delivery of which was known 
to him, but he did not comply with the summons to the appeal proceedings. He 
either did not attend the proceedings despite being aware of the summons or he 
did not take organisational precautions to ensure that summonses sent to him at 
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the address that he had provided would reach him. In view of the right to be heard 
which was in any event granted by virtue of the summons served in person at first 
instance, there does not appear to be a legitimate interest in not being surrendered 
for the purpose of execution of the custodial sentence imposed. 
38 The present Chamber therefore asks: 
[Question 3 repeated] […] 
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