Tadas Tupikas

On 10 August 2017, the Court of Justice (Fifth Chamber) delivered its judgment in case C-270/17 PPU, on the interpretation of Article 4a (1) of the EAW Framework Decision.

A Lithuanian court issued an EAW against Mr Tupikas, a Lithuanian national, for the purpose of carrying out a sentence of imprisonment of one year and four months. An application for the execution of this EAW was made before a Dutch court by the Public Prosecutor’s Office. The EAW mentions the existence of an enforceable judgment, where Mr Tupikas appeared in person, sentencing him in relation to a total of two offences under Lithuanian law. The EAW further states that Mr Tupikas appealed against that judgment, but the appeal proceedings did not lead to the sentence pronounced at first instance being amended. The EAW does not specify whether Mr Tupikas appeared before the appealing court.

In this context, the referring court seeks, in essence, to determine the scope of the concept of ‘trial resulting in the decision’ within the meaning of Article 4a (1) of the EAW Framework Decision, in the situation in which a number of judicial decisions have been handed down in the Member State which issued the EAW, at least one of which was issued without the person appearing in person at the trial. In particular, the referring court asks whether, in such a case, it is the appeal proceedings which must be regarded as decisive for the purposes of the application of that provision.

The Court held that, in light of its wording and its context, the concept of ‘trial resulting in the decision’, within the meaning of Article 4a (1) of the EAW Framework Decision, must be understood as referring to the proceeding that led to the judicial decision which finally sentenced the person whose surrender is sought in connection with the execution of a EAW.

In light of the ECtHR case law on Articles 5 and 6 ECHR, the Court found that, in the event that proceedings have taken place at several instances which have given rise to successive decisions, at least one of which was given in absentia, it is appropriate to understand by ‘trial resulting in the decision’, within the meaning of Article 4a(1) of EAW Framework Decision, the instance which led to the last of those decisions, provided that the court at issue made a final ruling on the guilt of the person concerned and imposed a penalty on him, such as a custodial sentence, following an assessment, in fact and in law, of the incriminating and exculpatory evidence, including, where appropriate, the taking account of the individual situation of the person concerned.

The Court therefore concluded that, where the issuing Member State has provided for a criminal procedure involving several degrees of jurisdiction which may thus give rise to successive judicial decisions, at least one of which has been handed down in absentia, the concept of ‘trial resulting in the decision’, within the meaning of Article 4a(1) of the Framework Decision, must be interpreted as relating only to the instance at the end of which the decision is handed down which finally rules on the guilt of the person concerned and imposes a penalty on him, such as a custodial sentence, following a re-examination, in fact and in law, of the merits of the case.