15.10.2005   

EN

Official Journal of the European Union

C 257/2

Reference for a preliminary ruling from the Bundesgerichtshof by order of that court of 30 June 2005 in criminal proceedings against Jürgen Kretzinger

(Case C-288/05)

(2005/C 257/03)

Language of the case: German

Reference has been made to the Court of Justice of the European Communities by order of the Bundesgerichtshof of 30 June 2005, received at the Court Registry on 19 July 2005, for a preliminary ruling in criminal proceedings against Jürgen Kretzinger on the following questions concerning the interpretation of Article 54 of the Convention implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders (‘CISA’):

1.

Is it a criminal prosecution of ‘the same acts’ within the meaning of Article 54 of the CISA (1) if a defendant has been convicted by an Italian court of importing contraband foreign tobacco into Italy and of being in possession of it there, as well as of failing to pay duty at the border on importing the tobacco, and is subsequently convicted by a German court — in connection with his earlier receipt of the same goods in Greece — of being party to evasion in relation to the (technically) Greek import duty that arose when the goods were previously imported by third parties, in so far as the defendant had intended from the outset to transport the goods to Great Britain via Italy, after taking delivery of them in Greece?

2.

Has a penalty ‘been enforced’ or is it ‘actually in the process of being enforced’ within the meaning of Article 54 of the CISA

(a)

if the defendant was given a custodial sentence, the enforcement of which was suspended in accordance with the law of the State in which judgment was given;

(b)

if the defendant was for a short time taken into police custody and/or held on remand pending trial, and that detention would count towards any subsequent enforcement of the penalty of imprisonment under the law of the State in which judgment was given?

3.

Is the interpretation of the notion of enforcement for the purposes of Article 54 of the CISA affected by

(a)

the fact that, having transposed the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (OJ 2002 L 190, p. 1) into national law, the (first) State in which judgment was given is in a position at any time to enforce its judgment which, under national law, is final and binding;

(b)

the fact that a request for judicial assistance by the State in which judgment was given, with a view to extraditing the convicted person or enforcing judgment within that State, could not automatically be complied with because judgment was given in absentia?

(1)  OJ 2000 L 239, p. 19