TR

On 17 December 2020, the Fourth Chamber of the Court of justice delivered its judgment in Case C-416/20, which concerns the interpretation of Article 4a(1) of Framework Decision 2002/584/JHA on the European arrest warrant (EAW) in relation to Directive 2016/343 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings. By its request for a preliminary ruling, the referring regional Court of Hamburg asks, in essence, whether the lawfulness of an extradition based on a European arrest warrant for the purpose of executing a custodial sentence rendered in absentia depends on the fulfilment by the requesting State of the conditions laid down in the Directive 2016/343.

On 7 October 2019 and on 4 February 2020, Romanian courts issued two EAWs against TR, a Romanian citizen, for the purpose of executing custodial sentences for which the defendant was convicted in absentia. According to information provided by the referring Court, TR travelled to Germany in 2018 in order to avoid the prosecutions initiated against him which have resulted in the aforementioned convictions in his absence.

After seeking additional information concerning the circumstances surrounding the conviction in absentia of TR, the German referring court found that the conditions for his extradition were met pursuant to the German law implementing Framework decision 2002/584. On the basis of the information provided by the Romanian authorities, the German referring court considered in particular that TR had fled to Germany and thereby prevented the possibility to summon him in person. The referring court further considered that TR was represented by a counsel in both proceedings and that he was aware of the proceedings initiated against him. After the German Court granted his surrender by decision of 28 May 2020, TR argued that his extradition in the absence of a guarantee that he would be granted a reopening of the proceedings would be unlawful pursuant to Articles 8 and 9 of Directive 2016/343, which respectively protect the right to be present at the trial and the right to a new trial for the accused person. The referring court thus expressed doubt over the lawfulness of the extradition and required the Court of justice to clarify the interplay between Article 4a(1) of Framework decision 2002/584 which provides grounds for optional non-execution of the EAW in case of convictions rendered in absentia and Articles 8 and 9 of Directive 2016/343.

First, on the basis of its judgment in Tupikas, the Court clarifies the conditions under which the optional grounds for non-execution as laid down in Article 4a(1) of Framework decision 2002/584 may apply. Pursuant to this provision introduced by the amending Framework Decision 2009/299, the executing judicial authority may refuse to execute an EAW if the person in question did not appear in person at the trial resulting in the decision, unless one of several exceptions apply. In other words, if any of the four conditions listed exhaustively in subparagraphs (a) to (d) of that provision are satisfied, execution of the surrender is mandatory and not optional, even if the person in question did not appear in person at the trial. This is particularly the case when the person concerned was informed of the scheduled trial or had given a mandate to a legal counsellor who was either appointed by the person concerned or by the State to defend him or her at the trial, as in the present case.

The Court underlines that the grounds for non-execution as laid down in Article 4a(1) of Framework decision 2002/584 are optional. It follows that, even if the executing judicial authority comes to the conclusion that none of the situations referred to in Article 4a(1)(a),(b),(c) or (d) are verified, meaning that nothing prevent the executing judicial authority to refuse the execution of the EAW, the executing authority may take into account other circumstances to ensure the surrender of the person concerned.

Second, the Court, contends that the failure of the national legislation of the issuing Member State to comply with Directive 2016/343 does not justify refusing the execution of an EAW as it would circumvent the system established under Framework decision 2002/584. This interpretation espouses the view expressed by the AG who recalled in this respect that limitations on the principle of mutual trust must be interpreted strictly. However, the Court underlines that this does not affect the obligation of the issuing Member State to comply with EU law. Consequently, in case of a failure to transpose Directive 2016/343, the person surrendered who face a breach of his or her rights will be able to invoke its provisions which have direct effect before the jurisdiction of the requesting Member State.

In the light of those considerations, the Court concludes that Article 4a(1) of Framework decision 2002/584 must be interpreted as not permitting the executing judicial authority to refuse the execution of the EAW issued for the purpose of executing a custodial sentence, when the person concerned has fled to the executing Member State, has failed to appear at the trial while he or she was aware of it, to ensure that his or her right to a retrial as protected under Directive 2016/343 would be respected.