# C_2023173EN.01000501.xml

| 15.5.2023 | EN | Official Journal of the European Union | C 173/5 |
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15.5.2023

EN

Official Journal of the European Union

C 173/5

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Judgment of the Court (Fourth Chamber) of 23 March 2023 (requests for a preliminary ruling from the Court of Appeal — Ireland) — Execution of two European arrest warrants issued against LU (C-514/21), PH (C-515/21)

(Joined Cases C-514/21 and C-515/21, (1) Minister for Justice and Equality (Lifting of the suspension) and Others)

(Reference for a preliminary ruling - Police and judicial cooperation in criminal matters - European arrest warrant - Framework Decision 2002/584/JHA - Surrender procedure between the Member States - Conditions for execution - Grounds for optional non-execution - Article 4a(1) - Warrant issued for the purpose of executing a custodial sentence - Concept of ‘trial resulting in the decision’ - Scope - First conviction, with a suspension - Second conviction - Absence of the person concerned at the trial - Revocation of the suspension - Rights of the defence - Convention for the Protection of Human Rights and Fundamental Freedoms - Article 6 - Charter of Fundamental Rights of the European Union - Articles 47 and 48 - Infringement - Consequences)

(2023/C 173/06)

Language of the case: English

Referring court

Court of Appeal

Parties to the main proceedings

LU (C-514/21), PH (C-515/21)

Intervener: Minister for Justice and Equality

Operative part of the judgment

| 1. | Article 4a(1) of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, as amended by Council Framework Decision 2009/299/JHA of 26 February 2009, read in the light of Articles 47 and 48 of the Charter of Fundamental Rights of the European Union,
  must be interpreted as meaning that where the suspension of a custodial sentence is revoked, on account of a new criminal conviction, and a European arrest warrant, for the purpose of serving that sentence, is issued, that criminal conviction, handed down in absentia, constitutes a ‘decision’ within the meaning of that provision. That is not the case for the decision revoking the suspension of that sentence. |
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1.

Article 4a(1) of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, as amended by Council Framework Decision 2009/299/JHA of 26 February 2009, read in the light of Articles 47 and 48 of the Charter of Fundamental Rights of the European Union,

must be interpreted as meaning that where the suspension of a custodial sentence is revoked, on account of a new criminal conviction, and a European arrest warrant, for the purpose of serving that sentence, is issued, that criminal conviction, handed down in absentia, constitutes a ‘decision’ within the meaning of that provision. That is not the case for the decision revoking the suspension of that sentence.

| 2. | Article 4a(1) of Framework Decision 2002/584, as amended by Framework Decision 2009/299,
  must be interpreted as authorising the executing judicial authority to refuse to surrender the requested person to the issuing Member State where it is apparent that the proceedings resulting in a second criminal conviction of that person, which was decisive for the issue of the European arrest warrant, took place in absentia, unless the European arrest warrant contains, in respect of those proceedings, one of the statements referred to in subparagraphs (a) to (d) of that provision. |
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2.

Article 4a(1) of Framework Decision 2002/584, as amended by Framework Decision 2009/299,

must be interpreted as authorising the executing judicial authority to refuse to surrender the requested person to the issuing Member State where it is apparent that the proceedings resulting in a second criminal conviction of that person, which was decisive for the issue of the European arrest warrant, took place in absentia, unless the European arrest warrant contains, in respect of those proceedings, one of the statements referred to in subparagraphs (a) to (d) of that provision.

| 3. | Framework Decision 2002/584, as amended by Framework Decision 2009/299, read in the light of Article 47 and Article 48(2) of the Charter of Fundamental Rights of the European Union,
  must be interpreted as precluding the executing judicial authority from refusing to surrender the requested person to the issuing Member State, on the ground that the proceedings resulting in the revocation of the suspension of the custodial sentence for the execution of which the European arrest warrant was issued took place in absentia, or from making the surrender of that person subject to a guarantee that he or she will be entitled, in that Member State, to a retrial or to an appeal allowing for the re-examination of such a revocation decision or of the second criminal conviction which was handed down against that person in absentia and which proves decisive for the issue of that warrant. |
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3.

Framework Decision 2002/584, as amended by Framework Decision 2009/299, read in the light of Article 47 and Article 48(2) of the Charter of Fundamental Rights of the European Union,

must be interpreted as precluding the executing judicial authority from refusing to surrender the requested person to the issuing Member State, on the ground that the proceedings resulting in the revocation of the suspension of the custodial sentence for the execution of which the European arrest warrant was issued took place in absentia, or from making the surrender of that person subject to a guarantee that he or she will be entitled, in that Member State, to a retrial or to an appeal allowing for the re-examination of such a revocation decision or of the second criminal conviction which was handed down against that person in absentia and which proves decisive for the issue of that warrant.

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(1)  OJ C 119, 14.3.2022.

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