Criminal Law - Effective Judicial Protection  

European Arrest Warrant (EAW) - reasons for refusal - fundamental rights protection - rights of defence - right to be heard

The ECJ was asked to clarify whether the national court requested to execute an EAW has the power or the duty to check the compatibility with EU fundamental rights of such an execution, in order, eventually, to refuse it, notably with respect to fundamental rights concerns that the EU legislator took into account, to some extent, in the list of compulsory or optional grounds for non execution. In its judgement, the ECJ held that a national authority cannot refuse the execution of an EAW issued for the purpose to enforce a judgment delivered in absentia, beyond the specific circumstances where non-execution is permitted (as an optional ground) by the EAW Framework Decision. The CJEU used the Charter as a parameter to review the validity of the choices made by the EU legislator as regards the power/duty of the judicial authorities of the Member States to refuse the execution of an EAW.

The preliminary reference in Melloni was issued before the CJEU by the Spanish Constitutional Court (Tribunal Constitucional). In 2004, the Court of Appeal of Bologna (Italy) issued an EAW for the surrender of Mr Melloni, an Italian national, who had been condemned in absentia in Italy to ten years’ imprisonment for the crime of bankruptcy fraud. Mr Melloni was arrested in Spain and the competent court (the Audiencia Nacional) decided to execute the warrant, because the man had been duly informed about the trial and throughout the trial had been represented by two lawyers of his choice.

Mr Melloni filed an individual complaint (recurso de amparo) before the Spanish Constitutional Court invoking the doctrine of the indirect violation of constitutional fundamental rights. In his view, by not making the surrender conditional on the retrial of the case at his presence, the Audiencia Nacional had violated his right to a fair trial under Article 24(2) of the domestic constitution. The Spanish Constitutional Court had indeed interpreted Article 24(2) of the Constitution in the sense that the surrender of a person who has been condemned in absentia, without conditioning the surrender to the possibility to obtain a retrial, would violate the right to a fair trial.

Yet, this interpretation clashed with the obligations stemming under the EAW Framework Decision, and particularly its Article 4a(1), which provides for an optional ground for non?execution of an EAW issued for the enforcement of a custodial sentence or a detention order, where the person concerned has not appeared in person at the trial that resulted in the conviction. That option is nevertheless accompanied by four exceptions in which the executing judicial authority is prevented from making the surrender of a person convicted in absentia conditional upon the conviction being open to review in his presence. In particular, execution cannot be refused when a lawyer represented the person concerned throughout the proceedings that led to her conviction. Therefore, the Spanish Constitutional Court decided to submit three preliminary questions to the CJEU, asking, in essence:

1. Whether Article 4a of the EAW Framework Decision must be interpreted as preventing precluding the executing judicial authorities, in the circumstances specified in that provision, from making the execution of an EAW issued for the purposes of executing a sentence conditional upon the conviction rendered in absentia being open to review in the issuing Member State;
2. Whether Article 4a(1) of the EAW Framework Decision is compatible with the requirements deriving from the right to an effective judicial remedy and to a fair trial, provided for in Article 47 CFR and from the rights of the defence guaranteed under Article 48(2) CFR;
3. Whether Article 53 CFR must be interpreted as allowing the executing 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.

In Melloni, at the outset, the CJEU observed that both the wording and the purpose of Article 4a of the Framework Decision suggests that, once the person convicted in absentia was aware, in due time, of the scheduled trial and was informed that a decision could be handed down if he did not appear for the trial or, being aware of the scheduled trial, gave a mandate to a legal counsellor to defend him at the trial, the executing judicial authority is required to surrender that person, with the result that it cannot make that surrender subject to there being an opportunity for a retrial of the case at which he is present in the issuing Member State.

Endorsing the findings of Advocate General Bot, the CJEU observed that the solution chosen by the EU legislature (ie, the provision of an exhaustive list of circumstances in which the execution of an EAW issued in order to enforce a decision rendered in absentia must be regarded as not infringing the rights of the defence) is incompatible with any discretion for the executing judicial authority to make that execution conditional on the conviction in question being open to review.

The CJEU then moved to assessing whether Article 4a of the Framework Decision is compatible with the fundamental rights guaranteed by EU law, in particular the right to an effective judicial remedy and to a fair trial provided for in Article 47 CFR, and the rights of the defence guaranteed by Article 48(2) CFR. The Court observed that the right of the accused to appear in person at his trial is an essential component of the right to a fair trial, but is not absolute. The accused may indeed 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. Nor that right is violated where the accused, who did not appear in person, was informed of the date and place of the trial or was defended by a legal counsellor to whom he had given a mandate to do so.

The Court therefore answered the second question in the sense that Article 4a of the Framework Decision 2002/584 does not disregard either the right to an effective judicial remedy and to a fair trial or the rights of the defence guaranteed by Articles 47 and 48(2) CFR.

Finally, as regards the third question, the CJEU dismissed the interpretation whereby Article 53 CFR gives general authorisation to a Member State to apply the domestic standard of protection of fundamental rights guaranteed by its constitution when that standard is higher than that deriving from the Charter and, where necessary, to give it priority over the application of provisions of EU law. Such an interpretation would indeed undermine the principle of the primacy of EU law, because a Member State could disapply  EU law provisions that are fully in compliance with the Charter where they conflict with the domestic standard of fundamental rights’ protection. According to the CJEU, Article 53 CFR rather allows a Member State (court) to apply the domestic level of fundamental rights protection when:

-       The EU law provisions (other than those of the Charter) applicable to the case do not specify the level of protection that must be granted to the fundamental rights at issue; and

-       The level of protection provided for by the Charter, as interpreted by the Court, and the primacy, unity and effectiveness of EU law are not compromised.

By contrast, when the EU legislator determined the level of protection to be granted to the fundamental rights concerned, there is no further space for the application of the domestic standard of fundamental rights protection, including where this provides for a broader protection than the Charter. It must be borne in mind, however, that the standard established by the EU legislator must be compatible with the Charter, which acts as a validity ground.

Since the Framework Decision has harmonised the conditions of execution of a European arrest warrant in the event of a conviction rendered in absentia, leaving no further discretion to the Member States, Article 53 CFR does not allow 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.

The relation with the Charter of this case is quite obvious, given that it concerned the execution of an EAW, which is an instrument of judicial cooperation in the criminal law field that is governed by EU law (notably, by the EAW Framework Decision). 

Whilst, in principle, all cases concerning the issue and the execution of an EAW fall within the scope of the Charter, the “intensity” of the connection may vary, with implications on the relevant standard of protection. The CJEU made this point clear in Melloni. When a situation is “completely governed by EU law” (in the sense that the EU legislator determined the specific level of fundamental rights protection to be guaranteed), the relevant standard is that established by the EU legislator, provided that it complies with the Charter. By contrast, if the situation “is not completely governed by EU law” (in the sense that the EU legislator did not determine the specific level of fundamental rights protection to be guaranteed, and there is only the general parameter offered by the Charter), the relevant standard is the domestic one, insofar as it does not compromise the level of protection provided for by the Charter, as interpreted  by the Court, nor the primacy, unity and effectiveness of EU law.

Vertical Judicial Interaction

Vertical dialogue national court/ECJ through the preliminary reference procedure

For the first time, the question for preliminary ruling was issued by the Spanish  Constitutional Court. Interestingly, the referring court did not show much deference to the CJEU: the Spanish Court aligned itself to the solution of the CJEU, but avoided quoting it.

Horizontal Judicial Interaction

Horizontal dialogue ECJ/ECtHR through reference to the latter’s case law

In its judgement, the ECJ refers to the case law of the ECtHR, though this was used to confirm the Court’s interpretation (notably, see judgements Medenica v. Switzerland, no. 20491/92; Sejdovic v. Italy [GC], no. 56581/00; Haralampiev v. Bulgaria, no. 29648/03) rather than to shape it. This is not completely convincing in light of Article 52(3) CFR, which suggests a different way of reasoning, with the case law of the ECHR as a starting point when Charter provisions guaranteeing rights already protected by the ECHR are at stake.

Strategic use of judicial interaction 
The Spanish Tribunal Constitucional issues a reference for preliminary ruling before the CJEU, doubting the compatibility with the Charter of the execution of an EAW.

Vertical Judicial Interaction

Vertical dialogue national court/ECJ through the preliminary reference procedure

For the first time, the question for preliminary ruling was issued by the Spanish  Constitutional Court. Interestingly, the referring court did not show much deference to the CJEU: the Spanish Court aligned itself to the solution of the CJEU, but avoided quoting it.

Horizontal Judicial Interaction

Horizontal dialogue ECJ/ECtHR through reference to the latter’s case law

In its judgement, the ECJ refers to the case law of the ECtHR, though this was used to confirm the Court’s interpretation (notably, see judgements Medenica v. Switzerland, no. 20491/92; Sejdovic v. Italy [GC], no. 56581/00; Haralampiev v. Bulgaria, no. 29648/03) rather than to shape it. This is not completely convincing in light of Article 52(3) CFR, which suggests a different way of reasoning, with the case law of the ECHR as a starting point when Charter provisions guaranteeing rights already protected by the ECHR are at stake.

Strategic use of judicial interaction 
The Spanish Tribunal Constitucional issues a reference for preliminary ruling before the CJEU, doubting the compatibility with the Charter of the execution of an EAW.

Impact at the EU level

It is worth paying attention to the implications of the Melloni test in terms of judicial interaction. Where the EU legislator established the specific level of fundamental rights protection, this must comply with the Charter. In case of doubts, a national court could challenge the choice of the EU legislator – as expressed in the relevant EU secondary law provisions – through a reference for preliminary ruling of validity of those provisions with respect to the Charter. By contrast, where the EU legislator did not establish a specific standard of fundamental rights’ protection, a national court may need clarifications from the CJEU with respect to the two conditions which, according to Melloni, the application of the domestic standard is dependent on (namely, that standard shall not compromise the protection offered by the Charter, “as interpreted by the Court”, nor the “primacy, unity and effectiveness of EU law”).

• Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (OJ 2002 L 190/1), as amended by Council Framework Decision 2009/299/JHA of 26 February 2009 (OJ 2009 L 81/24)

• C?396/11, Radu, EU:C:2013:39