Opinion of the Advocate General — ECLI:EU:C:2017:612
Date: 2017-07-26
Language of the case: Dutch
Subject matter: Judicial cooperation in criminal matters;Police cooperation;Area of freedom, security and justice
Procedure: Preliminary reference - urgent procedure
Origin: Netherlands

summary, supplied the following information: – the requested person did not appear at the hearing on appeal; – he was properly notified of that hearing; – the requested person’s counsellor did appear at the hearing on appeal. 58 On the basis of the additional information provided by the issuing judicial authority indicating that Mr Zdziaszek and his counsellor were aware of the content of the judgment of 10 April 2012, the referring court infers that the requested person ‘was aware of the scheduled trial’ on appeal and that he ‘had given a mandate’ to his chosen counsellor ‘to defend him … at the trial’. Because there had only been one hearing on appeal, it also infers from that information that Mr Zdziaszek ‘was indeed defended by that counsellor at that hearing’. 59 In the light of the foregoing, the situation thus appears in a different light depending on whether the focus is on the proceedings at first instance or on those on appeal, assuming that the case was examined there on the merits as part of such proceedings. 60 Before the referring court asks the issuing judicial authority to clarify the latter point, it wonders whether the appeal proceedings fall within the scope of Article 4a(1) of Framework Decision 2002/584. 61 That court takes the view that there are several factors pleading in favour of an affirmative answer. 62 It relies in that regard on the wording of that provision, which does not restrict its scope to the proceedings at first instance, subparagraphs (c) and (d) thereof expressly referring both to a ‘retrial’ and an ‘appeal’. Under Polish law, appeal proceedings entail a fresh examination of the merits of the case. 63 Moreover, that interpretation of Article 4a(1) is borne out by the objective pursued by that provision, which, as held by the Court in paragraph 43 of its judgment of 26 February 2013, Melloni (C‑399/11, EU:C:2013:107), and in paragraph 37 of the judgment of 24 May 2016, Dworzecki (C‑108/16 PPU, EU:C:2016:346), is to enable the executing judicial authority to allow surrender, despite the absence of the requested person at the trial resulting in their conviction, while fully upholding the rights of defence. 64 The referring court states that the rights of the defence are part of the right to a fair trial within the meaning of Article 6 of the ECHR and Article 47 of the Charter, with the result that once a Member State has established an appeal procedure, it is required to ensure that the person concerned enjoys, within the framework of that procedure, the fundamental guarantees laid down in those provisions. Thus, although the person concerned has the right to waive his rights of defence, the fact remains that, as the European Court of Human Rights has held, the criminal court, which is called upon once more to rule on the guilt of the person concerned, may not issue a ruling without a direct assessment of the evidence presented in person by an accused who wishes to prove that he did not commit the purportedly criminal act. In such a case, the mere fact that the person concerned has been able to exercise his rights of defence at first instance is, therefore, insufficient for it to be concluded that the requirements of Article 6 ECHR and Article 47 of the Charter have been met. 65 If the person concerned did not appear in person at the trial on appeal and if on appeal there was an examination of the merits and the person concerned was (again) convicted, or the verdict handed down at first instance was upheld, then, in the opinion of the referring court, it is consistent with the objective pursued by Article 4a(1) of Framework Decision 2002/584 that those proceedings should come within the scope of that provision. 66 The referring court observes, however, that that interpretation is not shared by a number of other Member States, which take the view that appeal proceedings are in no way relevant for the purposes of the review to be carried out under Article 4a(1) of Framework Decision 2002/584. It could therefore be argued that, once it has been established that the rights of the defence of the person concerned were fully upheld in the proceedings at first instance, the principle of mutual trust requires it to be held that the authorities of the issuing Member State have not disregarded the fundamental rights recognised by EU law in other proceedings. Nevertheless, the Court has not yet ruled in that regard. 67 It was in those circumstances that the Rechtbank Amsterdam (District Court, Amsterdam), decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling: ‘(1) Are proceedings – in which the court in the issuing Member State decides to combine separate custodial sentences which had previously been imposed on the person concerned by a final judgment into one single custodial sentence, and/or to change an aggregate custodial sentence which had previously been imposed on the person concerned by a final judgment and – in which that court no longer examines the question of guilt, such as the proceedings which led to the cumulative sentence of 25 March 2014, a “trial resulting in the decision” as referred to in the introductory subparagraph of Article 4a(1) of Framework Decision 2002/584? (2) Can the executing judicial authority: – in a case where the requested person did not appear in person at the trial resulting in the decision, – but where the issuing judicial authority has not, either in the [European arrest warrant] or in the supplementary information requested pursuant to Article 15(2) of Framework Decision 2002/584, provided information about the applicability of one or more of the circumstances referred to in subparagraphs (a) to (d) of Article 4a(1) of Framework Decision 2002/584, in accordance with the wording of one or more of the categories of point 3 of paragraph (d) of the [European arrest warrant] form, for those very reasons conclude that none of the conditions of Article 4a(1)(a) to (d) of Framework Decision 2002/584 has been satisfied and for those very reasons refuse to execute the [European arrest warrant]? (3) Are appeal proceedings – in which there has been an examination of the merits and – which resulted in the passing of a (new) sentence on the person concerned and/or the confirmation of the sentence handed down at first instance, – where the [European arrest warrant] concerns the execution of that sentence, the “trial resulting in the decision” as referred to in Article 4a(1) of [the] Framework Decision?’ The urgent procedure 68 The referring court has requested that the present reference for a preliminary ruling be dealt with under the urgent preliminary ruling procedure provided for in Article 107 of the Rules of Procedure of the Court. 69 In support of its application, that court relied on the fact that Mr Zdziaszek is currently in custody in the Netherlands, pending a decision on the course to take concerning the execution of the European arrest warrant issued against him by the competent authorities of the Republic of Poland. 70 The referring court further stated that it could not take a decision in that regard until the Court has given a ruling on the present reference for a preliminary ruling. The Court’s answer to the questions raised therefore has a direct and decisive impact on the duration of Mr Zdziaszek’s detention in the Netherlands with a view to his possible surrender by way of execution of that European arrest warrant. 71 It should be stated, first of all, that the present reference for a preliminary ruling concerns the interpretation of Framework Decision 2002/584, which comes within the sectors covered by Title V of Part Three of the TFEU on the area of freedom, security and justice. Consequently, that reference may be dealt with under the urgent preliminary ruling procedure. 72 Secondly, as regards the criterion relating to urgency, it is necessary, in accordance with the settled case-law of the Court, to take into account the fact that the person concerned in the case in the main proceedings is currently deprived of his liberty and that the question as to whether he may continue to be held in custody depends on the outcome of the dispute in the main proceedings (see, in particular, judgment of 10 November 2016, Kovalkovas, C‑477/16 PPU, EU:C:2016:861, paragraph 21 and the case-law cited). Moreover, the situation of the person concerned must be assessed as it stood at the time when consideration was given to whether the reference should be dealt with under the urgent procedure (judgment of 24 May 2016, Dworzecki, C‑108/16 PPU, EU:C:2016:346, paragraph 22 and the case-law cited). 73 In the present case, first, it is common ground that, on that date, Mr Zdziaszek was deprived of his liberty. Moreover, his continued detention depends on the outcome of the main proceedings, the detention measure against him having been ordered, according to the referring court, in the context of the execution of the European arrest warrant issued against him. 74 In those circumstances, on 8 June 2017, the Fifth Chamber of the Court, acting on a proposal from the Judge-Rapporteur and after hearing the Advocate General, decided to accede to the referring court’s request that the present reference for a preliminary ruling be dealt with under the urgent preliminary ruling procedure. Consideration of the questions referred The first and third questions 75 By its first and third questions, which it is appropriate to examine together, the referring court essentially asks whether the concept of ‘trial resulting in the decision’, within the meaning of Article 4a(1) of Framework Decision 2002/584, 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. 76 In order to answer those questions as reformulated, it must be borne in mind, first of all, that, as is apparent from paragraphs 81, 90 and 98 of today’s judgment, Tupikas (C‑270/17 PPU), for the purposes of the application of Article 4a(1) of Framework Decision 2002/584, the concept of ‘trial resulting in the decision’ must be interpreted as referring, in the case where the proceedings have taken place over several instances which have given rise to successive decisions, at least one of which was handed down in absentia, to only the appeal proceedings, in so far as the decision handed down at the end of those proceedings has finally found the person concerned guilty and determined the penalty, such as a custodial sentence, after a further examination of the merits of the case in fact and in law. 77 It is true that, in principle, such a conviction has two distinct but related aspects, namely the finding of guilt and the handing down of a sentence, a custodial sentence in this case (see today’s judgment, Tupikas, C‑270/17 PPU, paragraphs 78 and 83). 78 The fact remains, however, that, even if, as in the case in the main proceedings, the quantum of the penalty imposed is amended in a subsequent proceeding, the decision resulting from appeal proceedings with the characteristics set out in paragraph 76 of the present judgment remains relevant for the purposes of the verifications to be carried out by the executing judicial authority under Article 4a(1) of Framework Decision 2002/584. 79 For the same reasons as those set out in paragraphs 83 and 84 of today’s judgment, Tupikas (C‑270/17 PPU), the final finding of guilt at the end of the appeal proceedings directly affects the situation of the person concerned, all the more so as it constitutes the legal basis for the custodial sentence which the person concerned must serve. 80 It is therefore essential that the person concerned be able to exercise his rights of defence fully before a final decision is taken as to his guilt. 81 It should further be stated that, as also follows from paragraphs 85 and 86 of today’s judgment, Tupikas (C‑270/17 PPU), the appeal proceedings are all the more decisive in the context of Article 4a(1) of Framework Decision 2002/584 since the full and effective observance of the rights of the defence at that stage of the proceedings is such as to remedy a possible breach of those rights during a prior stage of the criminal proceedings. 82 It is therefore necessary to conclude, on that aspect of the first and third questions, 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. 83 Secondly, it is necessary to determine whether 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, is covered by Article 4a(1) of the Framework Decision. 84 As is apparent from the case file before the Court, first, such a decision, although taken after one or more decisions sentencing the person concerned to one or more penalties, does not affect the finding of guilt set out in the previous decisions, that conviction therefore being final. 85 Next, such a decision modifies the quantum of the penalty or penalties imposed. It is therefore necessary to make a distinction between measures of that type and those relating to the methods of execution of a custodial sentence. It is moreover apparent from the case-law of the European Court of Human Rights that Article 6(1) of the ECHR does not apply to questions concerning the methods for executing a sentence, in particular those relating to provisional release (see, to that effect, ECtHR, 3 April 2012, Boulois v. Luxembourg, CE:ECHR:2012:0403JUD003757504, § 87). 86 Finally, proceedings leading to a decision, such as the judgment handing down a cumulative sentence at issue in the main proceedings, consisting in commuting into a single sentence one or more sentences handed down previously in respect of the person concerned, necessarily results in a more favorable result for that person. Thus, for example, a lighter penalty may be imposed following the entry into force of new legislation which penalises the relevant offence less severely. In addition, following several convictions, each of which involves the imposition of a sentence, the sentences may be combined to obtain a cumulative sentence which is less than the sum of the various sentences resulting from previous separate decisions. 87 In that regard, it is apparent from the case-law of the European Court of Human Rights that the guarantees laid down in Article 6 of the ECHR apply not only to the finding of guilt, but also to the determination of the sentence (see, to that effect, ECtHR, 28 November 2013, Dementyev v. Russia, CE:ECHR:2013:1128JUD004309505, § 23). Thus, compliance with the requirement of a fair trial entails the right of the person concerned to be present at the hearing because of the significant consequences which it may have on the quantum of the sentence to be imposed (see, to that effect, ECtHR, 21 September 1993, Kremzov v. Austria, CE:ECHR:1993:0921JUD001235086, § 67). 88 This is the case with respect to specific proceedings for the determination of an overall sentence where those proceedings are not a purely formal and arithmetic exercise but entail a margin of discretion in the determination of the level of the sentence, in particular, by taking account of the situation or personality of the person concerned, or of mitigating or aggravating circumstances (see ECtHR, 15 July 1982, Eckle v. Germany, CE:ECHR:1983:0621JUD000813078, § 77, and 28 November 2013, Dementyev v. Russia, CE:ECHR:2013:1128JUD004309505, § 25 and 26). 89 Furthermore, it is irrelevant in that regard whether the court concerned has jurisdiction to increase the sentence previously imposed (see, to that effect, ECtHR, 26 May 1988, Ekbatani v. Sweden, CE:ECHR:1988:0526JUD001056383, § 32, and 18 October 2006, Hermi v. Italy, CE:ECHR:2006:1018JUD001811402, § 65). 90 It follows 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 Framework Decision 2002/584, where they entail a margin of discretion for the competent authority within the meaning of paragraph 88 of the present judgment and give rise to a decision which finally determines the sentence. 91 Given that such proceedings determine the quantum of the sentence which the convicted person will ultimately serve, that person must be able to effectively exercise his rights of defence in order to influence favourably the decision to be taken in that regard. 92 The fact that the new sentence is hypothetically more favourable to the person concerned is irrelevant since the level of the sentence is not determined in advance but depends on the assessment of the facts of the case by the competent authority and it is precisely the duration of the sentence to be served which is finally handed down which is of decisive importance for the person concerned. 93 In the light of the grounds set out above, it must be held that, in a case such as that at issue in the main proceedings, where, following appeal proceedings in which the merits of the case were re-examined, a decision finally determined the guilt of the person concerned and also imposed a custodial sentence on him, the level of which was however amended by a subsequent decision taken by the competent authority after it had exercised its discretion in that matter and which finally determined the sentence, both decisions must be taken into account for the purposes of the application of Article 4a(1) of Framework Decision 2002/584. 94 As is apparent, respectively, from paragraphs 76 to 80 and 90 to 92 of the present judgment, it is necessary to ensure that the rights of the defence are observed in respect of both the finding of guilt and the final determination of the sentence and, where those two aspects, which are in any case closely linked, are dissociated, the final decisions handed down in that regard must, in the same way, be subject to the verifications required by that provision. That provision seeks precisely to strengthen the procedural rights of the persons concerned by ensuring that their fundamental right to a fair trial is guaranteed (see, to that effect, today’s judgment, Tupikas, C‑270/17 PPU, paragraphs 58 and 61 to 63) and, as stated in paragraph 87 of the present judgment, those requirements apply both in respect of the finding of guilt and the determination of the sentence. 95 Moreover, such an interpretation has no practical disadvantage, since, as the Advocate General pointed out in point 55 of his Opinion, the standard form for a European arrest warrant annexed to Framework Decision 2002/584 requires information relating to both aspects to be provided. The foregoing interpretation is therefore not such as to increase the workload of the issuing judicial authority. 96 In the light of all the foregoing, the answer to the first and third questions is that, in a situation such as that at issue in the main proceedings, the concept of a ‘trial resulting in the decision’, within the meaning of Article 4a(1) of Framework Decision 2002/584, must be interpreted as referring not only to the proceedings which gave rise to the decision on appeal, where that decision, after a fresh examination of the case on the merits, finally determined the guilt of the person concerned, but also to subsequent proceedings, such as those which led to the judgment handing down the cumulative sentence at issue here, at the end of which the decision that finally amended the level of the initial sentence was handed down, inasmuch as the authority which adopted the latter decision enjoyed a certain discretion in that regard. The second question 97 By its second question, the referring court asks essentially whether Framework Decision 2002/584 should be interpreted as allowing the executing judicial authority to refuse to execute the European arrest warrant for the sole reason that neither the standard form for a European arrest warrant annexed to that Framework Decision nor the additional information obtained from the issuing judicial authority pursuant to Article 15(2) of that Framework Decision provide sufficient information to enable it to establish that one of the situations referred to in Article 4a(1)(a) to (d) of the Framework Decision exists. 98 In order to give a useful answer to that question, it should be borne in mind that the checks required by Article 4a(1) of Framework Decision 2002/584 must in principle relate to the last instances at which the merits of the case were examined and which led to the final conviction of the person concerned (see, to that effect, today’s judgment, Tupikas, C‑270/17 PPU, paragraphs 81, 90 and 91). In the particular case, examined in the context of the reply given to the first and third questions, in which the level of the sentence initially imposed has been finally amended pursuant to new proceedings involving the exercise of a discretion, both proceedings, as is apparent from paragraphs 93, 94 and 96 of the present judgment, are relevant in that regard. 99 Accordingly, the issuing judicial authority is required to provide the information referred to in Article 8(1) of Framework Decision 2002/584 in relation to the first of those proceedings or, as the case may be, to both proceedings. 100 It follows, accordingly, that the executing judicial authority must limit its examination to the proceedings referred to in the preceding paragraph for the purposes of applying Article 4a(1) of the Framework Decision. 101 Having regard to the system established by that provision and as is apparent from its very wording, the executing judicial authority is entitled to refuse to execute a European arrest warrant issued for the purpose of executing a custodial sentence or a detention order if the person concerned did not appear in person at the trial resulting in the decision, unless the European arrest warrant indicates that the conditions set out in subparagraphs (a), (b), (c) or (d) of that provision are met. 102 Thus, where the existence of one of the situations referred to in subparagraphs (a) to (d) is established, the executing judicial authority is under an obligation to carry out the European arrest warrant, notwithstanding the absence of the person concerned at the trial which led to the decision (see, to that effect, today’s judgment, Tupikas, C‑270/17 PPU, paragraphs 50, 55 and 95). 103 In the event that that authority takes the view that it does not have sufficient information to enable it to validly decide on the surrender of the person concerned, it is incumbent upon it to apply Article 15(2) of Framework Decision 2002/584, by requesting from the issuing judicial authority the urgent provision of such additional information as it deems necessary before a decision on surrender can be taken. 104 If, at this stage, it still has not obtained the necessary assurances as regards the rights of defence of the person concerned during the relevant proceedings, the executing judicial authority may refuse to execute the European arrest warrant. 105 That authority not only cannot tolerate a breach of fundamental rights but, as provided for in Article 15(2) of Framework Decision 2002/584, it must also ensure that the time limits laid down in Article 17 thereof for taking the decision on the European arrest warrant are complied with, with the result that it cannot be required to resort to that Article 15(2) again (see, to that effect judgment of 5 April 2016, Aranyosi and Căldăraru, C‑404/15 and C‑659/15 PPU, EU:C:2016:198, paragraph 97). 106 However, it should be pointed out in that context that Article 4a of Framework Decision 2002/584 provides for an optional ground for non-execution of the European arrest warrant and that the cases referred to in Article 4a(1)(a) to (d) were conceived as exceptions to that optional ground for non-recognition (see, to that effect, today’s judgment, Tupikas, C‑270/17 PPU, paragraphs 50 and 96). 107 Accordingly, the Court has already held that the executing judicial authority may, even after it has found that those cases do not cover the situation of the person who is the subject of the European arrest warrant, take account of other circumstances that enable it to ensure that the surrender of the person concerned does not entail a breach of his rights of defence (see, to that effect, judgment of 24 May 2016, Dworzecki, C‑108/16 PPU, EU:C:2016:346, paragraphs 50 and 51). 108 Thus, Framework Decision 2002/584 does not prevent the executing judicial authority from ensuring that the rights of defence of the person concerned are respected by taking due consideration of all the circumstances characterising the case before it, including the information which it may itself obtain. 109 In the light of the foregoing, the answer to the second question is that Framework Decision 2002/584 must be interpreted as meaning that, 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 that 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 that Framework Decision 2002/584, the executing judicial authority may refuse to execute the European arrest warrant. 110 However, that Framework Decision does not prevent that authority from taking account of all the circumstances characterising the case before it in order to ensure that the rights of the defence of the person concerned are respected during the relevant proceeding or proceedings. Costs 111 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable. On those grounds, the Court (Fifth Chamber) hereby rules: 1. The concept of ‘trial resulting in the decision’, within the meaning of 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, must be interpreted as referring not only to the proceedings which gave rise to the decision on appeal, where that decision, after a fresh examination of the case on the merits, finally determined the guilt of the person concerned, but also to subsequent proceedings, such as those that led to the judgment handing down the cumulative sentence at issue here, at the end of which the decision that finally amended the level of the initial sentence was handed down, inasmuch as the authority which adopted the latter decision enjoyed a certain discretion in that regard. 2. Framework Decision 2002/584, as amended by Framework Decision 2009/299, must be interpreted as meaning that, 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 that Framework Decision, as amended, 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, as amended, provide sufficient evidence to establish the existence of one of the situations referred to in Article 4a(1)(a) to (d) of Framework Decision 2002/584, as amended, the executing judicial authority may refuse to execute the European arrest warrant. However, that Framework Decision, as amended, 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. [Signatures] * Language of the case: Dutch.