Brussels, 26/02/2013 (Agence Europe) - The situation of an Italian national arrested in Spain and sentenced in absentia in Italy allowed the EU Court of Justice (CJEU), on Tuesday 26 February, to clarify the framework decision relating to the European arrest warrant and the conditions in which a member state must carry out an extradition decision. In the case in question, the CJEU said on Tuesday that extradition could be carried out independently of the fact that the sentence was made in absentia and independently of the possibility for the person found guilty to benefit from review of the penalty upon return to his country. The case relates to Stefano Melloni, who was arrested in Spain, and who was to be handed over to the Italian authorities in order to be judged by the Tribunale di Ferrara, a Court press release explains. In October 1996, the Audiencia Nacional in Spain had deemed that extradition to Italy was justified but, after having been bailed, Melloni fled. In 1997, the Tribunale di Ferrara had decided that notification should now be made to the lawyers designated by the accused. The press release goes on to say that, in accordance with a ruling from the Tribunale di Ferrara in 2000, subsequently upheld on appeal and cassation level, Melloni was sentenced in absentia to ten years' imprisonment for bankruptcy fraud.
Following his arrest by the Spanish police, Melloni opposed surrender to the Italian authorities, contending that, at the appeal stage, he had appointed another lawyer, and revoking the appointment of the two previous lawyers, despite which notice was still being given to them. He also contended that, under Italian procedural law, it is impossible to appeal against sentences imposed in absentia, for which reason the execution of the European arrest warrant should, where appropriate, be made conditional upon Italy's guaranteeing the possibility of appealing against the judgement.
Despite this, in September 2008, the Audiencia Nacional decided to surrender Melloni to the Italian authorities in order to serve the sentence imposed upon him by the Tribunale di Ferrara, considering that it was not proven that the lawyers appointed by Melloni had ceased to represent him. Melloni having introduced an appeal before the Tribunal Constitucional, the CJEU was to state whether the framework decision allows the Spanish jurisdiction to make Melloni's surrender subject to the possibility of judicial review of his conviction, as required by the case-law of the Tribunal Constitucional.
In its ruling, the Court first of all points out that the member states are, in principle, obliged to act upon a European arrest warrant. The executing judicial authority may make the execution of a European arrest warrant subject solely to the conditions set out in the framework decision. In that regard, a provision of the latter precludes the judicial authorities from refusing to execute a European arrest warrant issued for the purpose of executing a sentence in a situation where the person concerned has not appeared in person at the trial where, “having been made aware of the scheduled trial, he gave a mandate to a legal counsellor to defend him at the trial and was in fact defended by that counsellor”. That is Melloni's situation in the present case.
The CJEU states that the provision of the framework decision is compatible with the Charter of Fundamental Rights. “Although the right of the accused to appear in person at his trial is an essential component of the right to a fair trial, that right is not absolute. The accused may waive that right in a manner safeguarded by certain safeguards. That provision thus sets out the circumstances in which the person concerned must be deemed to have waived his right to be present at his trial”. Regarding the possibility of making execution of the arrest warrant subject to review of the sentence in the country issuing the warrant, this could compromise the effectiveness of the arrest warrant, the Court states, adding: “That framework decision reflects the consensus reached by all the member states regarding the scope to be given under EU law to the procedural rights enjoyed by persons convicted in absentia who are the subject of a European arrest warrant”. (SP/transl.jl)