Case C-447/24, Höldermann: Request for a preliminary ruling from the Kammergericht Berlin (Germany) lodged on 25 June 2024 – Staatsanwaltschaft Berlin
Date: 2024-06-25
Institutions: Court of Justice
Subjects: carrying out of sentence, criminal proceedings, enforcement of ruling, judicial cooperation in criminal matters in the EU, rights of the defence








C_202405495EN.000101.fmx.xml












Official Journal of the European Union


EN
C series













C/2024/5495


23.9.2024






Request for a preliminary ruling from the Kammergericht Berlin (Germany) lodged on 25 June 2024 – Staatsanwaltschaft Berlin


(Case C-447/24, Höldermann)
                (1)

(C/2024/5495)
Language of the case: German

Referring court

Kammergericht

Parties to the main proceedings


Law enforcement agency: Staatsanwaltschaft Berlin

Person concerned: SO

Questions referred







1.


Does a summons served on a domestic service agent appointed by the sentenced person satisfy the requirements of the first indent of Article 9(1)(i)(i) of Council Framework Decision 2008/909/JHA, (2) as amended by Council Framework Decision 2009/299/JHA? (3)











2.


Is Article 9(1)(i)(ii) of Council Framework Decision 2008/909/JHA, as amended by Council Framework Decision 2009/299/JHA, to be understood as meaning that the trial must already have been scheduled at the time the mandate is given and that the person concerned must be aware of the scheduled date, or is it sufficient that the person concerned gives or confirms the mandate in the certain knowledge that a trial will take place?










3.


Is it compatible with the primacy of European Union law that the German legislature has framed the case of a conviction in absentia as an absolute ground of non-permissibility under Paragraph 84b(1)(2) of the Gesetz über die internationale Rechtshilfe in Strafsachen (German Law on International Mutual Legal Assistance in Criminal Matters, ‘the IRG’), even though Article 9(1)(i) of Council Framework Decision 2008/909/JHA, as amended by Council Framework Decision 2009/299/JHA, provides only for an optional ground of refusal in that respect?










4.


Can the person concerned waive the protection afforded by Article 9(1)(i) of Council Framework Decision 2008/909/JHA, as amended by Council Framework Decision 2009/299/JHA, and thus enable a decision rendered in absentia to be enforced even if the conditions laid down in Article 9(1)(i)(i)-(iii) of the framework decision are not met? Does making an application to the competent authority of the issuing State for enforcement in the home State constitute such a waiver?






(1)  The name of the present case is a fictitious name. It does not correspond to the real name of any party to the proceedings.

(2)  Council Framework Decision 2008/909/JHA of 27 November 2008 on the application of the principle of mutual recognition to judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the European Union (OJ 2008 L 327, p. 27).

(3)  Council Framework Decision 2009/299/JHA of 26 February 2009 amending Framework Decisions 2002/584/JHA, 2005/214/JHA, 2006/783/JHA, 2008/909/JHA and 2008/947/JHA, thereby enhancing the procedural rights of persons and fostering the application of the principle of mutual recognition to decisions rendered in the absence of the person concerned at the trial (OJ 2009 L 81, p. 24).


ELI: http://data.europa.eu/eli/C/2024/5495/oj
ISSN 1977-091X (electronic edition)