The question for preliminary reference that led to the CJEU’s judgment in Radu was raised by the Court of Appeal of Constan?a (Romania), which was requested to execute four EAWs for criminal prosecution issued by German authorities against Mr Radu. The man did not consent to his surrender and, in order to avoid the execution of the warrants, used two instruments.
First, he invoked the unconstitutionality of the national legislation implementing the EAW Framework Decision, alleging its contrast with, inter alia, Article 24(1) (the right to a fair trial) of the Constitution. In particular, the man complained of the fact that, based on the EAW and the national legislation transposing it, European arrest warrants for prosecution purposes could be issued in absentia, i.e. without the person concerned having been summoned or having had the possibility of hiring a lawyer or presenting his defence.
Secondly, after the Constitutional Court dismissed the exception of unconstitutionality by decision nr. 1290/14.10.2010, Mr Radu claimed that the Court of Appeal of Constanta should have referred a question for preliminary reference to the CJEU, asking, in essence:
Whether the EU primary law status of the CFR implies that national courts have the right to check the conformity of the execution of an EAW with EU fundamental rights and, if this is not the case, to refuse execution, even if such a cause of refusal is neither provided by the Framework Decision 2002/584/JHA nor by the national implementing law.
Deciding on the preliminary reference in Radu by judgment of 29 January 2013 (C?396/11), the Grand Chamber of the CJEU held that Articles 47 and 48 of the Charter does not require that a judicial authority of a Member State should be able to refuse to execute an EAW issued for the purposes of conducting a criminal prosecution on the ground that the requested person was not heard by the issuing judicial authorities before that arrest warrant was issued.
The CJEU observed that, under Article 4a of the EAW Framework Decision, the infringement of the rights of the defence during a trial that has led to the imposition of a criminal sentence in absentia may, under certain conditions, constitute a ground for non?execution of an EAW issued for the purposes of giving effect to a custodial sentence or a detention order. Conversely, the fact that the EAW has been issued for the purposes of conducting a criminal prosecution, without the requested person having been heard by the issuing judicial authorities, does not feature among the grounds for (compulsory or optional) non?execution.
According to the CJEU, whilst the EAW must have a certain element of surprise, an obligation for the issuing judicial authorities to hear the requested person before the execution of the warrant would frustrate the surrender system foreseen by the Framework Decision. Moreover, the Framework Decision provides for a set of fair trial guarantees in cases such as that of Mr Radu (see Articles 8, 13, 14, 15 and 19). Before deciding on the surrender, the executing judicial authority must subject the EAW to a degree of scrutiny; the requested person has the right to legal counsel in the case where he consents to his surrender or, where he does not consent, she is entitled to be heard by the executing judicial authority, under the conditions determined by mutual agreement with the issuing judicial authorities.
In light of the foregoing, the CJEU concluded that the executing judicial authorities cannot refuse to execute an EAW warrant issued for the purposes of conducting a criminal prosecution on the ground that the requested person was not heard in the issuing Member State before that arrest warrant was issued.
The CJEU confirmed the validity of the Framework Decision under Articles 47 and 48(2) of the Charter. The CJEU referred to the ECtHR case law and concluded that the right to appear in person at the trial as not an absolute right and that the accused may waive that right, expressly or tacitly, under certain conditions.
Regarding Charter Article 53, the CJEU acknowledged that state courts may apply national standards of protection of fundamental rights in reviewing national implementing measures, as long as the level of protection provided for by the Charter, and the primacy, unity and effectiveness of EU law are not compromised.
In the resolution of the case, the Constitutional Court referred to the Charter as a hermeneutic criterion for the interpretation of Article 24(2) of the Constitution. Hence, the Charter was not directly enforced, but the Constitutional Court followed the interpretation given by the CJEU to overrule the previous constitutional interpretation of the right to a fair trial.