Sławomir Andrzej Zdziaszek

On 10 August 2017, the Court of Justice (Fifth Chamber) delivered its judgment in case C-271/17 PPU, on the interpretation of 4a(1) of the EAW Framework Decision.

A Polish court issued an EAW against Mr Zdziaszek, a Polish national residing in the Netherlands, for the purpose of carrying out two custodial sentences in Poland. An application for the execution of this EAW was made before a Dutch court by the Public Prosecutor’s Office. With respect to one of these custodial sentences, the EAW indicates that Mr Zdziaszek did not appear in person during the proceedings which led to the judicial decision which finally determined the sentence that he would have to serve. On the basis of the information provided by the issuing authority, the referring court takes the view that the situation referred to in Article 4a(1)(b) of the EAW Framework Decision does not apply in the present case, since it is not apparent from that information that the person sought ‘[was] aware of the scheduled trial’ or that he ‘had given a mandate to a legal counsellor, who was either appointed by the person concerned or by the State, to defend him ... at the trial’.

In this context, the referring court first asked whether the concept of ‘trial resulting in the decision’, within the meaning of Article 4a(1) of the EAW Framework Decision, must be interpreted as referring to the appeal proceedings and/or to proceedings for the amendment of custodial sentences handed down previously, such as those which led to the judgment handing down a cumulative sentence at issue in the main proceedings.

Building on its judgment in the Tupikas case, the Court considered that the concept of ‘trial resulting in the decision’ within the meaning of Article 4a(1) of the Framework Decision must be interpreted as covering the appeal proceedings that led to the decision which, after a new examination of the merits of the case in fact and in law, finally determined the guilt of the person concerned and imposed the penalty upon him, such as a custodial sentence, even though the sentence handed down was amended by a subsequent decision.

With respect to a decision at a later stage of the proceedings amending one or more of the custodial sentences previously imposed, such as the cumulative sentence at issue in the case in the main proceedings, the Court noted, although such a decision does not affect the finding of guilt set out in the previous decisions, it modifies the quantum of the penalty or penalties imposed.

In light of the ECtHR case law on Article 6 ECHR, the Court found that proceedings giving rise to a judgment handing down a cumulative sentence, such as that at issue in the main proceedings, leading to a new determination of the level of custodial sentences imposed previously, must be regarded as relevant for the application of Article 4a(1) of the EAW Framework Decision, where they entail a margin of discretion for the competent authority and give rise to a decision which finally determines the sentence.

The referring court also asked whether the EAW Framework Decision should be interpreted as allowing the executing judicial authority to refuse to execute the EAW where the person concerned has not appeared in person in the relevant proceeding or, as the case may be, in the relevant proceedings for the application of Article 4a(1) of the EAW Framework Decision, and where neither the information contained in the standard form for a European arrest warrant annexed to that Framework Decision nor the information obtained pursuant to Article 15(2) of that Framework Decision provide sufficient evidence to establish the existence of one of the situations referred to in Article 4a(1)(a) to (d) of the EAW Framework Decision.

The Court found that, in such a situation, the executing judicial authority may refuse to execute the European arrest warrant. However, it specified that the EAW Framework Decision does not prevent that authority from taking account of all the circumstances characterising the case brought before it in order to ensure that the rights of the defence of the person concerned are respected during the relevant proceeding or proceedings.