Opinion of the Advocate General — ECLI:EU:C:2012:600
Date: 2012-10-02
Language of the case: Spanish
Subject matter: Judicial cooperation in criminal matters;Area of freedom, security and justice;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling
Origin: Spain

Summary — Judgment of the Court (Grand Chamber), 26 February 2013 1. Acts of the institutions — Temporal application — Procedural rules — Application to proceedings pending at the time when such rules enter into force — Article 4a of Framework Decision 2002/584 — Application to the recognition and enforcement of decisions rendered in the context of a surrender procedure at the time when it entered into force (Council Framework Decision 2002/584, as amended by Framework Decision 2009/299, Arts 4a and 8(2)) 2. Judicial cooperation in criminal matters — Framework decision on the European arrest warrant and the surrender procedures between Member States — Grounds for optional non-execution of the European arrest warrant — Warrant for the execution of a sentence pronounced in absentia — Execution subject to the condition of the decision being open to review in absentia in the issuing Member State — Not compatible (Council Framework Decision 2002/584, as amended by Framework Decision 2009/299, Art. 4a (1)) 3. Judicial cooperation in criminal matters — Framework decision on the European arrest warrant and the surrender procedures between Member States — Grounds for optional non-execution of the European arrest warrant — Warrant for the execution of a sentence pronounced in absentia — Obligation to surrender in the conditions laid down by Article 4a(1) of Framework Decision 2002/584 — Infringement of the right to an effective remedy and to a fair trial — Infringement of the rights of the defence — None (Charter of Fundamental Rights of the European Union, Arts 47 and 48(2); Council Framework Decision 2002/584, as amended by Framework Decision 2009/299, Art. 4a (1)) 4. Fundamental rights — Charter of Fundamental Rights of the European Union — Level of protection — Fundamental rights guaranteed by the constitution of a Member State — Warrant for the execution of a sentence pronounced in absentia — Possibility for a State, in the name of the right to a fair trial and the rights of the defence guaranteed by its constitution, to make the surrender subject to the condition of a possible review in the issuing Member State — No such possibility (Charter of Fundamental Rights of the European Union, Art. 53; Council Framework Decision 2002/584, as amended by Framework Decision 2009/299, Art. 4a (1)) 1. See the text of the decision. (see paras 31, 32) 2. Article 4a(1) of Framework Decision 2002/584 on the European arrest warrant and the surrender procedures between Member States, as amended by Framework Decision 2009/299, must be interpreted as precluding the executing judicial authorities, in the circumstances specified in that provision, from making the execution of a European arrest warrant issued for the purposes of executing a sentence conditional upon the conviction rendered in absentia being open to review in the issuing Member State. The solution which the EU legislature found, consisting in providing an exhaustive list of the circumstances in which the execution of a European arrest warrant issued in order to enforce a decision rendered in absentia must be regarded as not infringing the rights of the defence, is incompatible with any retention of the possibility for the executing judicial authority to make that execution conditional on the conviction in question being open to review in order to guarantee the rights of the defence of the person concerned. (see paras 44, 46, operative part 1) 3. Article 4a(1) of Framework Decision 2002/584 on the European arrest warrant and the surrender procedures between Member States, as amended by Framework Decision 2009/299, does not disregard either the right to an effective judicial remedy and to a fair trial or the rights of the defence guaranteed by Articles 47 and 48(2) of the Charter of Fundamental Rights of the European Union respectively, and is therefore compatible with the requirements under those articles. Although the right of the accused to appear in person at his trial is an essential component of the right to a fair trial, that right is not absolute. The accused may waive that right of his own free will, either expressly or tacitly, provided that the waiver is established in an unequivocal manner, is attended by minimum safeguards commensurate to its importance and does not run counter to any important public interest. In particular, there is no violation of the right to a fair trial, even where the accused did not appear in person, if he was informed of the date and place of the trial or was defended by a legal counsellor to whom he had given a mandate to do so. Furthermore, as indicated by Article 1 of Framework Decision 2009/299, the objective of the harmonisation of the conditions of execution of European arrest warrants issued for the purposes of executing decisions rendered at the end of trials at which the person concerned has not appeared in person, effected by that framework decision, is to enhance the procedural rights of persons subject to criminal proceedings whilst improving mutual recognition of judicial decisions between Member States. (see paras 49, 51, 53, 54, operative part 2) 4. Article 53 of the Charter of Fundamental Rights of the European Union must be interpreted as not allowing a Member State to make the surrender of a person convicted in absentia conditional upon the conviction being open to review in the issuing Member State, in order to avoid an adverse effect on the right to a fair trial and the rights of the defence guaranteed by its constitution. A different interpretation of Article 53 of the Charter would undermine the principle of the primacy of EU law inasmuch as it would allow a Member State to disapply EU legal rules which are fully in compliance with the Charter where they infringe the fundamental rights guaranteed by that State’s constitution. It is true that Article 53 of the Charter confirms that, where an EU legal act calls for national implementing measures, national authorities and courts remain free to apply national standards of protection of fundamental rights, provided that the level of protection provided for by the Charter, as interpreted by the Court, and the primacy, unity and effectiveness of EU law are not thereby compromised. However, Article 4a(1) of Framework Decision 2002/584 on the European arrest warrant and the surrender procedures between Member States, as amended by Framework Decision 2009/299, does not allow Member States to refuse to execute a European arrest warrant when the person concerned is in one of the situations provided for therein. Allowing a Member State to avail itself of Article 53 of the Charter to make the surrender of a person convicted in absentia conditional upon the conviction being open to review in the issuing Member State, a possibility not provided for under Framework Decision 2009/299, in order to avoid an adverse effect on the right to a fair trial and the rights of the defence guaranteed by the constitution of the executing Member State, by casting doubt on the uniformity of the standard of protection of fundamental rights as defined in that framework decision, would undermine the principles of mutual trust and recognition which that decision purports to uphold and would, therefore, compromise the efficacy of that framework decision. (see paras 58, 60, 61, 63, 64, operative part 3)