Brussels, 01/10/2012 (Agence Europe) - The execution of the European arrest warrant cannot make the surrender of a person, convicted in their absence but aware of the scheduled trial, subject to a right to review the judgment in the Member State which issues the warrant. The appropriate provision of the framework decision on the European arrest warrant respects the terms of the Charter of Fundamental Rights and the rights of the accused at the time the latter is made aware of his trial and has appointed a lawyer who has effectively defended hem throughout the entire proceedings.
This is effectively the gist of the decision made at the European Court of Justice by the Advocate General Yves Bot, in the conclusions made on Tuesday 2 October (C-399/11) in response to preliminary rulings from the Spanish Constitutional Court. An Italian national decided to go to the latter (having been sentenced to 10 years imprisonment in his absence but who had fled to Spain) to protest against being handed over to the Italian authorities on the basis of a European arrest warrant. He argued that Italian procedural law did not include the possibility of appealing against sentences made in absentia. According to the interested party, this would go against the jurisprudence of the Spanish Constitutional Court, according to which in the event of being sentenced for a serious crime and in the absence of the accused at the Court trial, the person sentenced can not be handed over to the state that has issued the arrest warrant unless he has an opportunity to benefit from a review of the decision. The Spanish Court is seeking specific guidance from the European Court of Justice on the compatibility of this jurisprudence with the provision (art.4 bis§1, points a and b) in the framework decision on the European arrest warrant, according to which the legal authorities of a member state cannot execute a European arrest warrant when the accused has not appeared at the trial in person but has been aware of it and has provided a mandate to a lawyer to defend him and has effectively been defended at the trial.
The Advocate General considers that that conclusion derives not only from the wording of that provision but also from the objectives pursued by the European Union legislature. Faced with uncertainties capable of reducing the effectiveness of the mechanism of mutual recognition of judgments rendered in absentia, the European Union legislature decided to “provide an exhaustive list” of the situations in which the execution of a European arrest warrant issued in order to enforce a decision rendered in absentia must be regarded as not infringing the rights of the defence. This is why in this case, although the Spanish jurisprudence aims to defend the rights of the defence, it is incompatible with the provision in question and contrary to the objectives pursued by the legislator. In response to another question from Spanish Court, Mr Bot states that the said provision respects the rights of the defence because it sets out conditions in which the interested party must be deemed to have waived, voluntarily and unambiguously, his right to appear at his trial, so that he cannot claim the benefit of a retrial. Finally, the Advocate General concludes that Article 53 of the Charter of Fundamental Rights cannot be relied upon so as to give primacy to national constitutional law over the Framework Decision because the intention of the European legislator is to protect fundamental rights without compromising the efficiency of the European arrest warrant, whilst preventing procedural guarantees being used to escape justice. (FG/trans.fl)