# C_2022119EN.01001601.xml

| 14.3.2022 | EN | Official Journal of the European Union | C 119/16 |
| --- | --- | --- | --- |

14.3.2022

EN

Official Journal of the European Union

C 119/16

---

Reference for a preliminary ruling from the Court of Appeal (Ireland) made on 20 August 2021 — LU v Minister for Justice and Equality

(Case C-514/21)

(2022/C 119/22)

Language of the case: English

Referring court

Court of Appeal

Parties to the main proceedings

Appellant: LU

Respondent: Minister for Justice and Equality

Questions referred

| 1. | (a) | Where the surrender of the requested person is sought for the purpose of serving a custodial sentence which was suspended ab initio but which was subsequently ordered to be enforced as a result of the conviction of the requested person for a further criminal offence, and where that enforcement order was made by the court that convicted and sentenced the requested person for that further criminal offence, are the proceedings leading to that subsequent conviction and enforcement order part of the ‘trial resulting in the decision’ for the purposes of Article 4a(l) of Council Framework Decision 2002/584/JHA (1)? |
| --- | --- | --- |

1.

(a)

Where the surrender of the requested person is sought for the purpose of serving a custodial sentence which was suspended ab initio but which was subsequently ordered to be enforced as a result of the conviction of the requested person for a further criminal offence, and where that enforcement order was made by the court that convicted and sentenced the requested person for that further criminal offence, are the proceedings leading to that subsequent conviction and enforcement order part of the ‘trial resulting in the decision’ for the purposes of Article 4a(l) of Council Framework Decision 2002/584/JHA (1)?

| (b) | Is it relevant to the answer 1 (a) above whether the court that made the enforcement order was obliged to make that order as a matter of law or whether it had a discretion to make such an order? |
| --- | --- |

(b)

Is it relevant to the answer 1 (a) above whether the court that made the enforcement order was obliged to make that order as a matter of law or whether it had a discretion to make such an order?

| 2. | In the circumstances set out in question 1 above, is the executing judicial authority entitled to inquire into whether the proceedings leading to the subsequent conviction and enforcement order, which took place in the absence of the requested person, were conducted in compliance with Article 6 of the European Convention on Human Rights and Fundamental Freedoms and, in particular, whether the absence of the requested person involved a violation of the rights of the defence and/or the requested person's right to a fair trial? |
| --- | --- |

2.

In the circumstances set out in question 1 above, is the executing judicial authority entitled to inquire into whether the proceedings leading to the subsequent conviction and enforcement order, which took place in the absence of the requested person, were conducted in compliance with Article 6 of the European Convention on Human Rights and Fundamental Freedoms and, in particular, whether the absence of the requested person involved a violation of the rights of the defence and/or the requested person's right to a fair trial?

| 3. | (a) | In the circumstances set out in question 1 above, if the executing judicial authority is satisfied that the proceedings leading to the subsequent conviction and enforcement order were not conducted in compliance with Article 6 of the European Convention on Human Rights and Fundamental Freedoms and, in particular, that the absence of the requested person involved a violation of the rights of the defence and/or of the requested person's right to a fair trial, is the executing judicial authority entitled and/or obliged (a) to refuse surrender of the requested person on the basis that such surrender would be contrary to Article 6 of the Convention and/or Articles 47 and 48(2) of the Charter of Fundamental Rights of the European Union and/or (b) to require the issuing judicial authority as a condition of surrender to provide a guarantee that the requested person will, upon surrender, be entitled to a retrial or appeal, in which they will have a right to participate and which allows for the merits of the case, including fresh evidence, to be re-examined which may lead to the original decision being reversed, in respect of the conviction leading to the enforcement order? |
| --- | --- | --- |

3.

(a)

In the circumstances set out in question 1 above, if the executing judicial authority is satisfied that the proceedings leading to the subsequent conviction and enforcement order were not conducted in compliance with Article 6 of the European Convention on Human Rights and Fundamental Freedoms and, in particular, that the absence of the requested person involved a violation of the rights of the defence and/or of the requested person's right to a fair trial, is the executing judicial authority entitled and/or obliged (a) to refuse surrender of the requested person on the basis that such surrender would be contrary to Article 6 of the Convention and/or Articles 47 and 48(2) of the Charter of Fundamental Rights of the European Union and/or (b) to require the issuing judicial authority as a condition of surrender to provide a guarantee that the requested person will, upon surrender, be entitled to a retrial or appeal, in which they will have a right to participate and which allows for the merits of the case, including fresh evidence, to be re-examined which may lead to the original decision being reversed, in respect of the conviction leading to the enforcement order?

| (b) | For the purposes of question 3 (a) above, is the applicable test whether the surrender of the requested person would breach the essence of their fundamental rights under Article 6 of the Convention and/or Articles 47 and 48(2) of the Charter and, if so, is the fact that the proceedings leading to the subsequent conviction and enforcement order were conducted in absentia, and that, in event of his surrender, the requested person will not have a right to a retrial or appeal, sufficient to permit the executing judicial authority to conclude that surrender would breach the essence of those rights? |
| --- | --- |

(b)

For the purposes of question 3 (a) above, is the applicable test whether the surrender of the requested person would breach the essence of their fundamental rights under Article 6 of the Convention and/or Articles 47 and 48(2) of the Charter and, if so, is the fact that the proceedings leading to the subsequent conviction and enforcement order were conducted in absentia, and that, in event of his surrender, the requested person will not have a right to a retrial or appeal, sufficient to permit the executing judicial authority to conclude that surrender would breach the essence of those rights?

---

(1)  2002/584/JHA: Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States — Statements made by certain Member States on the adoption of the Framework Decision (OJ 2002, L 190, p. 1).

---