Reaction to Radu Judgment of the Oberlandesgericht of Munich of 15 May 2013

AuthorJoachim Vogel
Publication Date01 Sep 2013
310 Inter sentia
J V
Editor’s Note
We publish a short version of the above judgment at the reques t of and as translated by
the reporting judge, Profes sor Joachim Vogel, for no other reasons than that it shows law
in action, a judicial react ion to the Radu judgment of the Court of Just ice of the European
Union and, for non-German s, how German courts structure their judgments. e
contents speak for themselve s.
* * *
Superior Regional Court Mu nich, 1st Criminal Senate
General Public Prosecut ion Oce ./. K.
Order of 15May 2013 – OLG Ausl. 31 Ausl. A 442/13 (119/13)
Legal Provisions: Ar t.6 Treaty on European Union (“TEU”); Art.23 German Basic
Law; §73 second sentence German Act on International Cooperation in Crimina l
Matters (Gesetz über die internationale Rechtshilfe in Strafsachen – IRG – here the
“German Act”)
Keywords: limits to the primac y of European Union law; European arrest warra nts;
in absentia proceedings ; revocation of probation
Guiding pr inciples:
1. Before executing European a rrest warrants, German aut horities and courts still
examine on a case -to-cas e basis whether execution would violate the principles
laid down in Article6 TEU (§73 second sentence German Act); disting uished:
Court of Justice of the Europea n Union (“ECJ”) – Grand Chamber –, Judgment
of 29. January 2013 – C 396/11 “Radu” para. 36 and Judgment of 26February
2013 – C-399/11 “Melloni” para. 63; followed: German Federal Const itutional
Court – 1st Senate –, Judgment of 24March 2013 – 1 BvR 1215/07 para. 91.
2. e substitution of a probation measure by a prison sentence in absentia under
Bulgarian law does not violate the principles guara nteed under Article 6 TEU

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