On 26 February 2013, the European Court of Justice adopted a judgment in the Case C-399/11 in respect of the interpretation and the validity of Article 4a(1) of Council Framework Decision 2002/584/JHA on the European arrest warrant and the surrender procedures between Member States. The Court was also asked to examine the issue of whether a Member State may refuse to execute a European arrest warrant on grounds of infringement of the fundamental rights of the person concerned guaranteed by the national constitution.
The facts of the Case C-399/11
By order of the year of 1996, the Court of Spain authorized the extradition to Italy of Mr Melloni, in order for him to be tried there in relation to the facts set out in arrest warrants. However Mr Melloni fled, so that he could not be surrendered to the Italian authorities. In 2003 Mr Melloni was sentenced in absentia to imprisonment. On the year of 2004 the European arrest warrant for execution of the sentence imposed by the Court of Italy was issued. Mr Melloni opposed surrender to the Italian authorities, contending that the conviction in absentia violates his right to fair trial.
The Court of Spain (Tribunal Constitucional) decided to refer the following questions to the Court for a preliminary ruling:
1) Must Article 4a(1) of Framework Decision 2002/584/JHA be interpreted as precluding national judicial authorities, in the circumstances specified in that provision, from making the execution of a European arrest warrant conditional upon the conviction in question being open to review, in order to guarantee the rights of defence of the person requested under the warrant?
2) In the event of the first question being answered in the affirmative, is Article 4a(1) of Framework Decision 2002/584/JHA compatible with the requirements deriving from the right to an effective judicial remedy and to a fair trial, provided for in Article 47 of the Charter of Fundamental Rights of the European Union, and from the rights of defence guaranteed under Article 48(2) of the Charter?
3) In the event of the second question being answered in the affirmative, does Article 53 of the Charter, interpreted schematically in conjunction with the rights recognised under Articles 47 and 48 of the Charter, allow a Member State to make the surrender of a person convicted in absentia conditional upon the conviction being open to review in the requesting State, thus affording those rights a greater level of protection than that deriving from European Union law, in order to avoid an interpretation which restricts or adversely affects a fundamental right recognised by the constitution of the first-mentioned Member State?
Judgment in the Case C-399/11
On the first question the Court of Justice stated that Article 4a(1) of Framework Decision 2002/584 must be interpreted as precluding the executing judicial authorities, in the circumstances specified in that provision, from making the execution of a European arrest warrant issued for the purposes of executing a sentence conditional upon the conviction rendered in absentia being open to review in the issuing Member State.
In answer of the second question the Court of Justice noted that although the right of the accused to appear in person at his trial is an essential component of the right to a fair trial, that right is not absolute. The accused may waive that right of his own free will, either expressly or tacitly, provided that the waiver is established in an unequivocal manner, is attended by minimum safeguards commensurate to its importance and does not run counter to any important public interest. Therefore the execution of a European arrest warrant issued for the purposes of executing the sentence of a person convicted in absentia cannot be made subject to the condition that that person may claim the benefit of a retrial at which he is present in the issuing Member State. The Court of Justice ruled that Article 4a(1) of Framework Decision 2002/584 is compatible with the requirements under Articles 47 and 48(2) of the Charter.
In answer to the third question, the Court of Justice stated that Article 53 of the Charter must be interpreted as not allowing a Member State to make the surrender of a person convicted in absentia conditional upon the conviction being open to review in the issuing Member State, in order to avoid an adverse effect on the right to a fair trial and the rights of the defence guaranteed by its constitution.
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