Stefano Melloni v Ministerio Fiscal.

• Jurisdiction: European Union
• Celex Number: 62011CC0399
• ECLI: ECLI:EU:C:2012:600
• Docket Number: C-399/11
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Date: 02 October 2012

OPINION OF ADVOCATE GENERAL

BOT

delivered on 2 October 2012 (1 )

Case C-399/11

Criminal proceedings

against

Stefano Melloni

(Reference for a preliminary ruling from the Tribunal Constitucional (Spain))

‛Police and judicial cooperation in criminal matters — European arrest warrant — Surrender procedures between Member States — Decisions rendered at the end of proceedings in which the person concerned has not appeared in person — Execution of a sentence pronounced in absentia — Possibility of review of the judgment — Charter of Fundamental Rights of the European Union — Article 53’

1. This reference for a preliminary ruling requests the Court to interpret and, if necessary, to assess the validity of Article 4a(1) of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, (2) as amended by Council Framework Decision 2009/299/JHA of 26 February 2009, (3) (‘the Framework Decision’) thereby enhancing the procedural rights of persons and fostering the application of the principle of mutual recognition to decisions rendered in the absence of the person concerned at the trial. It also asks the Court to define, for the first time, the scope of Article 53 of the Charter of Fundamental Rights of the European Union (‘the Charter’).

2. This case is a good illustration of how the coexistence of the various instruments protecting fundamental rights should be provided for. It has its origin in case-law of the Tribunal Constitucional (Constitutional Court) (Spain) according to which the execution of a European arrest warrant issued for the purposes of executing a judgment in absentia must always be subject to the condition that the convicted person is entitled to a retrial in the issuing Member State. However, Article 4a(1) of the Framework Decision provides, inter alia, that, where such a person has been aware of the intended proceedings and has given a mandate to a lawyer to represent him in order to defend him at that trial, surrender may not be subject to a condition of that kind.

3. By the three questions which it has decided to put to the Court, the Tribunal Constitucional invites it to assess the various approaches which might allow it to retain its case-law, including in the implementation of the Framework Decision. Several paths will therefore have to be explored.

4. Therefore, may the general application of the condition that the execution of a European arrest warrant issued for the purposes of executing a judgment in absentia requires that the convicted person be entitled to a retrial in the issuing Member State be derived from an interpretation of the wording, scheme or objectives of Article 4a of the Framework Decision?

5. If not, is that article compatible with the second paragraph of Article 47 and Article 48(2) of the Charter, which guarantee the accused, respectively, the right to a fair trial and respect for the rights of the defence? In addition, must European Union law grant those fundamental rights more extensive protection than the level of protection given to them by the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘the ECHR’)?

6. If the examination of the first two questions shows that Article 4a(1) of the Framework Decision, considered in the light of the second paragraph of Article 47 and Article 48(2) of the Charter, precludes the Tribunal Constitucional from retaining its case-law in the sphere of the European arrest warrant, does Article 53 of the Charter offer it that opportunity?

I –Legal context

A – Primary legislation of the European Union

7. The second paragraph of Article 47 of the Charter provides: ‘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.’

8. Article 48(2) of the Charter states: ‘Respect for the rights of the defence of anyone who has been charged shall be guaranteed.’

9. Paragraph 52(3) of the Charter states: ‘In so far as this Charter contains rights which correspond to rights guaranteed by the [ECHR], the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection.’

10. Article 53 of the Charter states: ‘Nothing in this Charter shall be interpreted as restricting or adversely affecting human rights and fundamental freedoms as recognised, in their respective fields of application, by Union law and international law and by international agreements to which the Union or all the Member States are party, including the [ECHR] and by the Member States’ constitutions.’

B – Secondary legislation of the European Union

11. Article 1 of the Framework Decision provides: ‘… 2. Member States shall execute any European arrest warrant on the basis of the principle of mutual recognition and in accordance with the provisions of this Framework Decision. 3. This Framework Decision shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 of the Treaty on European Union.’

12. According to Article 5 of Framework Decision 2002/584: ‘The execution of the European arrest warrant by the executing judicial authority may, by the law of the executing Member State, be subject to the following conditions: 1. where the European arrest warrant has been issued for the purposes of executing a sentence or a detention order imposed by a decision rendered in absentia and if the person concerned has not been summoned in person or otherwise informed of the date and place of the hearing which led to the decision rendered in absentia, surrender may be subject to the condition that the issuing judicial authority gives an assurance deemed adequate to guarantee the person who is the subject of the European arrest warrant that he or she will have an opportunity to apply for a retrial of the case in the issuing Member State and to be present at the judgment; …’

13. Under Article 2(2) of Framework Decision 2009/299: ‘In Article 5 [of Framework Decision 2002/584], paragraph 1 is deleted.’

14. In place of that deleted provision, Article 2(1) of Framework Decision 2009/299 inserts an Article 4a into Framework Decision 2002/584.

15. As stated in Article 1(1) of Framework Decision 2009/299, the objectives of the framework decision are ‘to enhance the procedural rights of persons subject to criminal proceedings, to facilitate judicial cooperation in criminal matters and, in particular, to improve mutual recognition of judicial decisions between Member States’.

16. Article 1(2) of Framework Decision 2009/299 also provides that ‘[t]his Framework Decision shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 of the Treaty, including the right of defence of persons subject to criminal proceedings, and any obligations incumbent upon judicial authorities in this respect shall remain unaffected’.

17. Article 4a of the Framework Decision provides as follows: ‘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 of the right to a retrial, or an appeal, in which he or she 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...