The possibility to issue a criminal conviction and sentence in the absence of the accused person is not foreseen in every EU legal system – let alone regulated in a uniform manner. It is no surprise, then, that the subject is at the heart of many legal challenges against the execution of European Arrest Warrants. As a matter of fact, the question attracts the interest of the legal profession and scholarship, and continues to be the focus of research projects and conferences.
As it is well-known, in its original formulation, the Framework Decision established, at Article 5 § 1, that the requested judicial authority has the possibility to subject the execution of a EAW issued on the basis of a judgment of conviction rendered in absentia to the assurance, from the requesting State, that the requested person would benefit of a re-trial upon surrender.
Under this version of the Framework Decision, it was clear that the judicial authority requested to execute an EAW was not only empowered, but also under a duty to seek from the executing authorities the assurance that, upon surrender, the person requested with the EAW issued in his/her absence would have benefitted from a re-trial.
However, following the adoption of the Council Framework Decision 2000/299/JHA of 26.2.2009, article 5 § 1 was deleted. In its place, new article 4(a) provides that the power of the requested State to refuse the execution of a EAW issued for the purpose of executing a sentence inflicted in absentia cannot be exercised if the requesting State have ticked the box in the EAW which states that the requested person “(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”.
Against this background, doubts cast over the extent of the review to be performed by the requested judicial authority faced with an EAW in which the relevant box has been ticked; and notably on whether that review must be performed on paper (i.e. on the letter of the EAW), or whether it should look beyond it and extend to the reality of the situation (i.e. on whether the requested person will actually benefit from a re-trial upon surrender).
In the European Commission’s view, the amendments meant that “in these […] situations, the executing judicial authority may not make the surrender of a person convicted in absentia conditional upon the conviction being open to review in his presence”.
Fortunately, however, such an automatic solution has later been corrected by the Court of Justice. Indeed, with a judgment issued on 10.8.2017, in case C-270/17, the Court of Justice of the European Union made it clear that Article 4 (a) of the Framework must be interpreted as “not prevent[ing] the executing judicial authority from ensuring that the rights of the person concerned are upheld by taking due consideration of all the circumstances characterising the case before it, including the information which it may itself obtain” (see Court of Justice of the European Union, judgment of 10.8.2017, C-270/17 PPU, § 97).
In keeping with the principle that “[the] Framework Decision 2002/584 must be interpreted in such a way as to ensure compliance with the requirements of respect for the fundamental rights of the persons concerned”, with the last-mentioned case the Court of Justice of the European Union (CJEU) confirmed that “[w]hen applying Article 4 a (1) of the Framework Decision, the executing judicial authority must, where the person concerned has not appeared in person in the proceedings leading to the decision which has finally disposed of the matter on the merits and, accordingly, ruled on his conviction, verify whether the situation before it corresponds to one of those described under (a) to (d) of that provision” (ibid, § 93 and 63; in the same sense see also judgment of 22.12.2017 in case C-571/17/PPU; judgment of 24.5.2016 in case C-108/16/PPU; judgment of 26.2.2013 in case C-399/11).
Crucially, the CJEU held that “[t]hat verification must be carried out” not only “on the basis of the indications set out in […] the European arrest warrant” but also of “any supplementary or additional information obtained or provided in accordance with Article 15(2) and (3) of Framework Decision 2002/584” (Court of Justice of the European Union, judgment of 10.8.2017, C-270/17 PPU, § 94).
Against this background, it is only “[i]f it were to become apparent that the situation before it corresponds to one of those described in Article 4a(1)(a) to (d) of Framework Decision 2002/584, the executing judicial authority is required to execute the European arrest warrant and to authorise the surrender of the person sought” (ibid, § 95). In other words, in the cases envisaged by Article 4 (a) of the EU Framework Decision, the requested judicial authority is bound to refuse the execution of the EAW unless it has taken into full considerations all the elements (including assurances and any “other circumstances”) that “enable it to ensure that the surrender of the person concerned does not entail a breach of his right to defence” (ibid., § 96).
The rationale of the decision is, of course, that “the principles of mutual trust and recognition on which that Framework Decision is based must not in any way undermine the fundamental rights guaranteed to the persons concerned” (ibid, § 59-60 and authorities therein cited). From a broader perspective, however, it is important to stress the Court’s effort to reduce automatism in the execution of European Arrest Warrants and favour an approach which takes into full consideration the reality of the situation.