Openbaar Ministerie v Sławomir Andrzej Zdziaszek.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2017:612
• Date: 26 July 2017
• Celex Number: 62017CC0271
• Court: Court of Justice (European Union)
• Procedure Type: Renvoi préjudiciel - Procédure d'urgence
• Docket Number: C-271/17

OPINION OF ADVOCATE GENERAL

BOBEK

delivered on 26 July 2017 ( 1 )

Case C‑271/17 PPU

Openbaar Ministerie

v

Sławomir Andrzej Zdziaszek

(Request for a preliminary ruling
from the Rechtbank Amsterdam (District Court, Amsterdam, Netherlands))

(Reference for a preliminary ruling — European arrest warrant — Grounds for optional non-execution — Warrant issued for the purpose of executing a custodial sentence or a detention order — ‘Trial resulting in the decision’ — Proceedings relating to a cumulative sentence — Appeal proceedings)

I. Introduction

1. Mr Sławomir Andrzej Zdziaszek, a Polish national, is the subject of a European arrest warrant (‘EAW’) issued by the Polish judicial authority. That authority seeks the surrender of Mr Zdziaszek, currently detained in the Netherlands, for the purpose of executing two custodial sentences of one year and six months and of three years and six months, respectively.

2. Those sentences were imposed by a ‘cumulative judgment’ which forms the basis of the EAW in question (‘the cumulative judgment’). That cumulative judgment is not concerned with the guilt of the person concerned but merely seeks to combine and modify three sentences imposed previously. Thus, the sentence of one year and six months combines two sentences imposed on Mr Zdziaszek in two separate sets of proceedings. For its part, the sentence of three years and six months represents a reduction in a four-year sentence imposed on Mr Zdziaszek by a previous judgment (‘the original judgment’). That reduction in the sentence took place following a legislative amendment favourable to Mr Zdziaszek.

3. The referring court observes that the EAW form contains only information relating to the cumulative judgment. Further information obtained by the referring court shows that Mr Zdziaszek was duly represented during the appeal proceedings which led to the original judgment, of which he was aware. In the view of that court, Mr Zdziaszek’s rights of defence at first instance were, for their part, not respected.

4. Under the national law transposing Article 4a of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (‘the Framework Decision’), ( 2 ) the competent Netherlands authority must refuse to execute an EAW if the person in question did not appear in person at the trial resulting in the decision, ( 3 )unless one of the situations listed therein arises.

5. In those circumstances, the referring court asks whether the concept of ‘trial resulting in the decision’ includes the proceedings which led to the adoption of the cumulative judgment, even though the question of guilt was no longer at issue in those proceedings. The referring court thus seeks to determine whether respect for the procedural rights of the person concerned must be assessed in the light of those proceedings or whether it is in fact necessary to take into account the proceedings which gave rise to the original judgment.

6. If it is necessary to take into account the proceedings which gave rise to the original judgment, the referring court is uncertain as to the consequences of Mr Zdziaszek’s lack of effective representation at first instance.

7. The referring court also asks whether it is possible for it to refuse to execute the EAW on the ground that neither the form accompanying the EAW nor the additional information which has been provided establishes that one of the situations described in Article 4a(1)(a) to (d) of the Framework Decision applies to the present case.

8. The background to those questions is the particular way in which the latter provision has been transposed into Netherlands law. Article 4a(1) of the Framework Decision introduces the possibility of refusing the surrender of a person convicted in absentia, unless the executing judicial authority has been able to ensure respect for that person’s procedural rights. If one of the four situations provided for in that provision arises, however, the executing judicial authority is required to execute the EAW. The national legislation reverses the logic of that option by prohibiting the referring court from surrendering the person concerned where none of those situations arise.

II. The legal framework

A. The ECHR

9. Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms ( 4 ) (‘the ECHR’) provides: ‘In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ...’

B. EU law

1. The Charter

10. Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’) provides: ‘Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article. Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented. ...’

11. Under Article 48(2) of the Charter ‘respect for the rights of the defence of anyone who has been charged shall be guaranteed’.

2. The Framework Decision

12. Article 1(1) of the Framework Decision defines the EAW as a ‘judicial decision issued by a Member State with a view to the arrest and surrender by another Member State of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order’.

13. Article 1(2) provides that ‘Member States shall execute any [EAW] on the basis of the principle of mutual recognition and in accordance with the provisions of this Framework Decision’.

14. Article 1(3) provides that the Framework Decision ‘shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 [TEU]’.

15. Article 4a of the Framework Decision was introduced by Framework Decision 2009/299, for the purpose of establishing the optional grounds for refusing to execute an EAW when the person concerned did not appear in person at his trial: ‘1. The executing judicial authority may also refuse to execute the European arrest warrant issued for the purpose of executing a custodial sentence or a detention order if the person did not appear in person at the trial resulting in the decision, unless the European arrest warrant states that the person, in accordance with further procedural requirements defined in the national law of the issuing Member State: (a) in due time: (i) either was summoned in person and thereby informed of the scheduled date and place of the trial which resulted in the decision, or by other means actually received official information of the scheduled date and place of that trial in such a manner that it was unequivocally established that he or she was aware of the scheduled trial; and (ii) was informed that a decision may be handed down if he or she does not appear for the trial; or (b) being aware of the scheduled trial, had given a mandate to a legal counsellor, who was either appointed by the person concerned or by the State, to defend him or her at the trial, and was indeed defended by that counsellor at the trial; or (c) after being served with the decision and being expressly informed about the right to a retrial, or an appeal, in which the person has the right to participate and which allows the merits of the case, including fresh evidence, to be re-examined, and which may lead to the original decision being reversed: (i) expressly stated that he or she does not contest the decision; or (ii) did not request a retrial or appeal within the applicable time frame; or (d) was not personally served with the decision but: (i) will be personally served with it without delay after the surrender and will be expressly informed of his or her right to a retrial, or an appeal, in which the person has the right to participate and which allows the merits of the case, including fresh evidence, to be re-examined, and which may lead to the original decision being reversed; and (ii) will be informed of the time frame within which he or she has to request such a retrial or appeal, as mentioned in the relevant European arrest warrant. 2. In case the European arrest warrant is issued ... under the conditions of paragraph 1(d) and the person concerned has not previously received any official information about the existence of the criminal proceedings against him or her, he or she may, when being informed about the content of the European arrest warrant, request to receive a copy of the judgment before being surrendered. ... it shall neither be regarded as a formal service of the judgment nor actuate any time limits applicable for requesting a retrial or appeal. 3. In case a person is surrendered under the conditions of paragraph (1)(d) and he or she has requested a retrial or appeal, the detention of that person awaiting such retrial or appeal shall, until these proceedings are finalised, be reviewed in accordance with the law of the issuing Member State, either on a regular basis or upon request of the person concerned. ...’

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