Court`s duty to investigate relevant facts in the "exequatur procedure"

20. September 2018

The Higher Regional Court - OLG Düsseldorf - (20.09.2018 - III-3 AR 158/17) declared the execution of a Chilean criminal judgment in Germany inadmissible because the "double criminality" (in this respect § 49 para. 1 no. 3a IRG) could not be established. The facts established by the foreign court must also be subsumable here under a criminal or administrative offence.

The admissibility of the assumption of enforcement in Germany is determined by the fourth part of the IRG and there § 49 (1) no. 3a IRG, which requires that a sanction could also have been imposed under German law for the offence.


General information on the enforcement of foreign criminal verdicts

Foreign criminal verdicts cannot easily be enforced in Germany, but "international legal assistance" makes enforcement possible in individual cases. According to § 48 IRG (International Mutual Legal Assistance Act), mutual legal assistance can be provided by enforcement of a penalty or other sanction imposed abroad if the foreign judgment can be converted into a German judgment in a so-called "exequatur proceeding". However, this presupposes, among other things, that an enforceable judgment of another state has been handed down in a procedure that conforms to human rights, and that the act could have been sanctioned under German law with a penalty or at least a fine.

By far not every foreign judgment fulfils the requirements of exequatur proceedings. In 2016, the Federal Constitutional Court overturned a hasty decision of the Ellwangen Regional Court and updated the duty of the regional courts to investigate relevant facts in the "exequatur procedure" (BVerfG, Decree of 18 February 2016 - 2 BvR 2191/13 -) and take a very close look before declaring enforcement admissible in individual cases.

The scope of the court's duty to clarify the facts of the case encompasses all conditions for enforcement. If there are well-founded indications or considerable circumstantial evidence that the enforcement claim of the sentencing state has been dropped, this must be clarified at all costs. The existence of permanent obstacles to enforcement, such as the limitation period for enforcement, must be clarified ex officio, but the person concerned would do well to provide the court with the factual basis - clues or considerable circumstantial evidence.




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