Judgment;Summary — ECLI:EU:C:2023:1031
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-398/22 – 1 
Case C-398/22 
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 
Order 
[…] 
In the extradition case concerning 
the Czech national, 
RQ, 
[…] 
residing in […] Berlin, […], 
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: 
EN 
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1. 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 either it was dismissed without examination of 
the merits or the judgment at first instance was varied in his or her favour? 
2. 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 Okresni soud v Ostrave ([…] 
[District Court], Ostrava) on 15 June 2021 […], the Czech authorities seek the 
surrender of the requested person for the purpose of executing the custodial 
sentence of 15 months deriving from the judgment of that court of 19 June 2020, 
[…] as varied by the judgment on appeal delivered by the Krajského soud v 
Ostrave ([…] [Regional Court], Ostrava) on 25 August 2020 […]. 
2 The convicted person was found guilty of the following offences: 
a) On 28 September 2019, in the entrance hall of the Ostrava-Svinov railway 
station, the requested person asked the injured party for a small amount of money 
of at least CZK 3. When the injured party opened his wallet, the requested person 
took advantage of his inattentiveness and reached into the wallet, taking coins 
worth a total of CZK 150 from it, and ran away with them. 
3 b) On 8 January 2020, in a public waiting room in the entrance hall of the Ostrava 
Main Railway Station, he threatened the security guard […] with a knife and 
threatened to kill him, in front of other persons. 
4 c) On 22 January 2020, he stole bottles of alcohol having a total value of 
CZK 3 997 from the Tesco hypermarket in Ostrava […]. He was detained by the 
store’s security guards after passing the checkout point. 
5 2. a) The requested person attended the hearing before the […] [District Court], 
Ostrava, in person. 
6 However, he did not attend the hearing in the appeal – which he had lodged – 
before the […] [Regional Court], Ostrava. The appeal led to a reduction of the 
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sentence imposed by the local court. It would not have been possible to vary the 
judgment at first instance to the detriment of the requested person, since, under 
Paragraph 259(4) of the Czech Code of Criminal Procedure, the principle 
prohibiting reformatio in peius applies to an appeal filed by the accused person. 
No defence lawyer participated in the proceedings. 
7 b) During the preliminary investigation, the requested person had provided an 
address in Ostrava-Vyskovice as his address for service. He was summoned to the 
hearing before the local court in person at that address on 30 April 2020. On 
8 July 2020, the judgment of the local court of 19 June 2020 was served on him in 
person at that address. He then lodged an appeal on 13 July 2020, again providing 
the abovementioned address in the letter lodging the appeal. 
8 On 3 August 2020, an attempt was made to serve the summons to the appeal 
hearing on him by post at the same address. As he was not physically located, the 
postal worker left a request in his mailbox asking him to collect the summons in 
person. Since the requested person did not do so, the summons was eventually put 
into his mailbox on 17 August 2020. There is no evidence that the requested 
person became aware of that summons. According to his own statements, he has 
been living in Berlin since August 2020. He had not informed the Czech 
authorities of that. 
9 c) In accordance with Czech law, the summons to the appeal hearing was deemed 
to have been served on the tenth day following the date on which the request for 
collection was left. Paragraph 64 of the Czech Code of Criminal Procedure reads 
as follows in that regard: 
(1) The following shall be served on the addressee in person: 
(a) … the summons to appear; 
(b) … 
(c) … 
(2) If the addressee for service of a procedural document to be served in 
person has not been located, that document shall be deposited and the 
addressee for service shall be informed in an appropriate manner of where 
he or she can collect it. 
(3) The procedural document shall be deposited 
(a) … 
(b) … 
(c) at the post office, if the procedural document is served by post; 
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(d) … 
e) … 
(4) In the event that the addressee for service does not collect the 
procedural document within ten days of the date of deposit, the last day of 
that period shall be deemed to be the date of service, even if the addressee 
for service has not learned of the deposit, although he or she is residing at 
the address for service or has designated that address as the address for 
service. After that period has expired without success, the body effecting 
service shall put the document in the letterbox or other box which the 
addressee for service uses, unless the sender precludes this. If there is no 
such box, the procedural document shall be returned to the sender and notice 
thereof shall be given on the official notice board. 
10 3. The requested person was provisionally arrested pursuant to the European arrest 
warrant in Berlin on 10 October 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 14 October 2021. 
11 After the […] [District Court], Ostrava, by letter of 26 October 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 
warrant issued for the purposes of extradition be cancelled and the surrender of 
the requested person to the Czech Republic 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. … 
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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, 
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 
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as referred to in the second sentence of subparagraph (3) and of the time 
limits applicable thereto. 
12 By order of 4 November 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 3 November 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. 
13 4. The condition of double criminality, to which surrender is subject, is met with 
regard to all the offences which are the subject of the proceedings. 
14 B. Grounds for the questions referred 
1. a) 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. 
15 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], Ostrava, in which the requested person did not participate. It is 
true that, under Czech law, the requested person was effectively summoned to that 
hearing at the address for service specified by him. However, it is not possible to 
establish that he actually received the summons in the manner described and was 
thus actually informed of the date of the appeal hearing, which, in accordance 
with the judgment of the Fourth Chamber of the Court of Justice of 24 May 2016, 
C-108/16 PPU (EU:C:2016:346), is a requirement for the application of 
Article 4a(1)(a)(i) of Framework Decision 2002/584/JHA, as amended by 
Framework Decision 2009/299/JHA. 
16 b) 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 the requested 
person participated in the trial at first instance, but thereafter frustrated his or her 
summons to the hearing in the appeal, which had been lodged (only) by him or 
her. 
17 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 Czech 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 
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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 
Czech criminal procedure, an examination on the merits takes place even if the 
accused person is absent from the appeal hearing and can – as the present case 
shows – lead to a result which is more favourable to the accused person, whereas 
the possibility of a less favourable result is precluded by the principle prohibiting 
reformatio in peius. 
18 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 a 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 which is delivered under Czech law in an otherwise 
identical factual situation despite the absence of the accused person and which can 
lead only to an amendment of the decision at first instance in his or her favour 
should give rise to the possibility of finding such a ground for refusal does not 
appear to be convincing. 
19 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. In Czech law governing criminal 
procedure, this is expressly regulated in Paragraph 139(1) of the Czech Code of 
Criminal Procedure. That provision is worded as follows in that regard: 
The judgment shall be final and, unless the present law provides otherwise 
below, enforceable, 
a) … 
b) in so far as the appeal against the judgment is admissible under the 
present law, but 
aa) … 
bb) … 
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cc) the appeal lodged has been dismissed. 
20 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. 
21 c) 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). 
22 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. 
23 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. 
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24 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. 
25 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. 
26 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. 
27 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. 
28 d) 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 
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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. 
29 e) The present Chamber takes the view that that interpretation of Article 4a(1) of 
Framework Decision 2002/584/JHA, as amended by Framework Decision 
2009/299/JHA, must also be transferred to cases such as the present one, in which 
the decision at first instance has been varied in favour of the requested person on 
appeal. It is true that, in that case, the judgment at first instance does not form the 
basis for enforcement on its own, but only in conjunction with the appeal decision 
varying it, with the result that – unlike in the case where the appeal is 
dismissed without examination of the merits – the decision to be enforced was 
delivered also on the basis of the appeal hearing. However, there is no apparent 
reason to place a person who actually succeeded in the appeal proceedings in a 
more favourable position than a person whose appeal was dismissed without 
examination of the merits. 
30 f) The present Chamber therefore asks: 
[Question 1 repeated] […] 
31 2. If Article 4a(1) of Framework Decision 2002/584/JHA, as amended by 
Framework Decision 2009/299/JHA, is to be interpreted as meaning that the 
examination must relate to the appeal proceedings before the […] [Regional 
Court], Ostrava, it would have to be assumed, in accordance with the judgment of 
the Fourth Chamber of the Court of Justice of 24 May 2016, C-108/16 PPU, that 
the summons served on the requested person in accordance with Article 64(4) of 
the Czech Code of Criminal Procedure does not satisfy the requirements of 
Article 4a(1)(a)(i) of that framework decision, since it did not provide the 
requested person with certain knowledge of the hearing. 
32 However, 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 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 
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judicial authority (see also judgments of the Fifth Chamber of the Court of Justice 
of 10 August 2017, C-270/17 PPU, [EU:C:2017:628], paragraph 96, and 
C-271/17, 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). 
33 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. 
34 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). 
35 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 Czech court, 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. 
36 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 – which had been delivered in his 
presence – but could then no longer be contacted at the address for service 
provided by him in those proceedings. He either did not collect the summons 
despite being aware of the notification of its deposit or prevented himself from 
being able to become aware of the notification by leaving the address for service. 
He thereby himself frustrated his participation in the appeal proceedings. In view 
of the right to be heard which was granted by virtue of the fact that he was heard 
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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. 
37 The present Chamber therefore asks: 
[Question 2 repeated] […]