62021CC0514
OPINION OF ADVOCATE GENERAL
ĆAPETA
delivered on 27 October 2022 (
1
)
Joined Cases C‑514/21 and C‑515/21
LU (C‑514/21),
PH (C‑515/21)
v
Minister for Justice and Equality
(Requests for a preliminary ruling from the Court of Appeal (Ireland))
(Reference for a preliminary ruling – Judicial cooperation in criminal matters – Framework Decision 2002/584/JHA – European arrest warrant and the surrender procedures between Member States – European arrest warrant issued for the purpose of executing a custodial sentence – Reasons for optional non-execution – Article 4a(1) of Framework Decision 2002/584 – ‘Trial resulting in the decision’ – Revocation of probation – Rights of defence – Article 6 ECHR – Articles 47 and 48 of the Charter of Fundamental Rights of the European Union)
I. Introduction
1.
A person committed an offence and was found guilty following a fair trial. That finding of guilt resulted in the imposition of a suspended prison sentence. Afterwards, that same person was accused of a second offence committed during the probation period for the first offence. The second trial was conducted in absentia and resulted in a finding of guilt and the imposition of a prison sentence. As a consequence, the suspension of the prison sentence for the first offence was revoked. The person concerned being out of the country, a European arrest warrant (‘EAW’) was issued for the execution of the prison sentence for the first offence.
2.
Can the executing authority refuse surrender on the foot of an EAW for the execution of the sentence relating to the first offence because the second trial was held in absentia? The answer to that question requires the interpretation of Article 4a(1) of Framework Decision 2002/584/JHA. (
2
) More specifically, it requires answering whether the expression ‘trial resulting in the decision’ used in that provision also captures that second trial.
3.
In addition to the interpretation of Article 4a(1) of the EAW Framework Decision, those references bring about a more profound challenge for the EAW system. They raise the question of whether the executing authority should be allowed (or even obliged), outside the situations envisaged by the EAW Framework Decision, to refuse surrender if it finds that a fundamental right (or at least the essence of that right) of the person to be surrendered would be breached by the issuing State.
4.
The EAW Framework Decision exhaustively enumerates the situations that oblige or allow the executing authority to refuse the execution of an EAW. (
3
) Aside from those situations, the Court of Justice has interpreted an additional possibility from the EAW Framework Decision. On the basis of that case-law, the executing authority may also refuse surrender if there are, in the issuing State, systemic or generalised deficiencies affecting a certain group of people or places of detention, (
4
) or else general or systemic deficiencies with the rule of law. (
5
) Before deciding not to surrender when such systemic issues exist, the executing authority additionally needs to establish whether the individual who is to be surrendered runs a real risk that his or her fundamental right would be breached in the issuing State. (
6
)
5.
In the present case, however – and the same is true in a number of other cases pending before the Court at the time this Opinion is delivered – (
7
) the systemic deficiencies in the issuing State are not being invoked. That raises a new question: does a potential single breach of fundamental rights of a person to be surrendered suffice to enable the executing authority to refuse surrender? That also (re)opens the question of whether the executing authority is at all allowed to verify whether the fundamental rights of the person to be surrendered would be respected by the issuing State. All of those cases, including the present references, bring to the surface problems that executing judicial authorities face in accepting automatic mutual recognition, the very principle on which the EAW system is based. (
8
)
6.
The questions referred can be answered in a way that is helpful to the referring court without taking a general position on the additional possibilities for refusing the execution of an EAW. That is the case, as will be demonstrated, because the referred questions arose in a context where a possible breach of a fundamental right results from a trial in absentia. In such a situation, the EU legislature has adopted a common understanding on when all national courts must recognise judicial decisions rendered in absentia. (
9
) Nevertheless, I will offer some arguments on why additional reasons to refuse surrender must be reduced to a minimum. (
10
)
II. Legal framework
A.
The EAW Framework Decision
7.
Article 1(3) of the EAW Framework Decision provides:
‘This Framework Decision shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 of the Treaty on European Union.’
8.
Article 4a(1) of the EAW Framework Decision provides for the optional ground of non-execution of the EAW under the following conditions:
‘1.   The executing judicial authority may also refuse to execute the European arrest warrant issued for the purpose of executing a custodial sentence or a detention order if the person did not appear in person at the trial resulting in the decision, unless the European arrest warrant states that the person, in accordance with further procedural requirements defined in the national law of the issuing Member State:
(a)
in due time:
(i)
either was summoned in person and thereby informed of the scheduled date and place of the trial which resulted in the decision, or by other means actually received official information of the scheduled date and place of that trial in such a manner that it was unequivocally established that he or she was aware of the scheduled trial;
and
(ii)
was informed that a decision may be handed down if he or she does not appear for the trial;
or
(b)
being aware of the scheduled trial, 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, and was indeed defended by that counsellor at the trial;
or
(c)
after being served with the decision and being expressly informed about the right to a retrial, or an appeal, in which the person has the right to participate and which allows the merits of the case, including fresh evidence, to be re-examined, and which may lead to the original decision being reversed:
(i)
expressly stated that he or she does not contest the decision;
or
(ii)
did not request a retrial or appeal within the applicable time frame;
or
(d)
was not personally served with the decision but:
(i)
will be personally served with it without delay after the surrender and will be expressly informed of his or her right to a retrial, or an appeal, in which the person has the right to participate and which allows the merits of the case, including fresh evidence, to be re-examined, and which may lead to the original decision being reversed;
and
(ii)
will be informed of the time frame within which he or she has to request such a retrial or appeal, as mentioned in the relevant European arrest warrant.
…’
B.
Framework Decision 2009/299
9.
Article 4a was introduced into the EAW Framework Decision as an additional optional ground for non-execution of an EAW by Framework Decision 2009/299. In that context, the following recitals of that framework decision are of relevance:
‘(1)
The right of an accused person to appear in person at the trial is included in the right to a fair trial provided for in Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, as interpreted by the European Court of Human Rights. The Court has also declared that the right of the accused person to appear in person at the trial is not absolute and that under certain conditions the accused person may, of his or her own free will, expressly or tacitly but unequivocally, waive that right.
…
(6)
The provisions of this Framework Decision amending other Framework Decisions set conditions under which the recognition and execution of a decision rendered following a trial at which the person concerned did not appear in person should not be refused. These are alternative conditions; when one of the conditions is satisfied, the issuing authority, by completing the corresponding section of the European arrest warrant or of the relevant certificate under the other Framework Decisions, gives the assurance that the requirements have been or will be met, which should be sufficient for the purpose of the execution of the decision on the basis of the principle of mutual recognition.’
III. The facts in the main proceedings and the questions referred
10.
The essentially common content of the two joined cases has been summarised in the opening paragraphs of this Opinion. At the outset, I will present the facts of the two joined cases in more detail.
A.
LU (C‑514/21)
11.
A Hungarian judicial authority is seeking the surrender of LU, the appellant in the main proceedings, for the execution of a custodial sentence and has issued an EAW for that purpose. The referring court, the Court of Appeal (Ireland), is the executing judicial authority in that context. (
11
)
12.
In collecting the relevant information, the High Court (Ireland), deciding at first instance whether to execute the EAW, submitted a total of seven requests for additional information to the issuing judicial authority under Article 15(2) of the EAW Framework Decision.
13.
LU committed several criminal offences in August 2005, namely domestic violence directed against his former spouse, their child and his mother-in-law, including assaulting his former spouse and false imprisonment of his spouse and their child. I will refer to those offences as ‘the First Offences’.
14.
LU was convicted of the First Offences in October 2006 and that conviction was upheld on appeal in April 2007. According to the referring court, the issuing judicial authority confirmed that LU was either present or represented by his chosen defence counsel at both of those trials. Thus, LU was sentenced to one year’s imprisonment for the First Offences, suspended for a two-year probation period. (
12
)
15.
In December 2010, LU was convicted at first instance of an offence of failing to pay child support, which I will refer to as ‘the Trigger Offence’. He was present at two hearings, but not for the pronouncement of the decision. As a result, the first instance court imposed a fine, but made no order in relation to the probationary sentence for the First Offences. (
13
)
16.
That conviction was appealed, although the case file does not provide any information as to who initiated that appeal. (
14
) LU was summoned to attend the hearing, but the summons was not collected, which is considered due service under Hungarian law. As LU was not present at that hearing, the appellate court appointed him a defence attorney who represented him at the trial.
17.
In June 2012, the appellate court varied the original sentence (the fine), sentencing LU to five months’ imprisonment and a one-year ban from public affairs. At the same time, that court ordered the enforcement of the sentence imposed for the First Offences, revoking the probation. (
15
)
18.
At that point, in September 2012, the Hungarian judicial authority issued an EAW for the purpose of serving the sentence imposed for both the First Offences and the Trigger Offence. LU opposed that surrender before the High Court, which refused to order his surrender.
19.
Finally, LU initiated a motion for a retrial in respect of the First Offences, which was rejected at first instance in October 2016 and confirmed on appeal in March 2017. At both instances, LU did not appear in person but was represented by a defence counsel appointed by him. As a result of that final rejection of a motion for a retrial, the prison sentence for the First Offences was again enforceable as a matter of Hungarian law. A Hungarian judicial authority thus issued a second EAW in July 2017 in respect of the sentence for the First Offences only. (
16
) It is that second EAW that is currently before the referring court, as the executing judicial authority.
20.
The referring court is of the provisional view that the trial for the Trigger Offence did not comply with Article 6 of the European Convention on Human Rights (‘ECHR’). As a consequence, should that trial be considered the ‘trial resulting in the decision’, it would be possible to refuse the execution of the EAW under Article 4a(1) of the EAW Framework Decision.
21.
LU argued that the prison sentence for the First Offences is enforceable solely due to the trial for the Trigger Offence. It follows that the trial for the Trigger Offence must be considered the ‘trial resulting in the decision’. Having been conducted in absentia, that trial does not meet any of the conditions in Article 4a(1) of the EAW Framework Decision that would allow surrender. LU added that no possibility of a retrial exists in respect of the Trigger Offence and thus his surrender would constitute a ‘flagrant breach’ of his rights under Article 6 ECHR as well as under Articles 47 and 48 of the Charter of Fundamental Rights of the European Union (‘the Charter’).
22.
In contrast, the Minister for Justice and Equality, the respondent in the main proceedings, argued that the trial for the Trigger Offence represents a mere ‘method of execution of the sentence’ and is therefore, on the basis of existing case-law of the Court of Justice, outside the scope of Article 4a(1) of the EAW Framework Decision. Thus, according to the Minister for Justice and Equality, the EAW should be executed and any alleged breaches of Article 6 ECHR are a matter for the courts of the issuing Member State.
23.
The referring court casts doubt on whether the case-law of the Court of Justice can be applied in a straightforward manner to the case at hand.
24.
In those circumstances, the Court of Appeal referred the following questions to the Court of Justice for a preliminary ruling:
‘(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(1) of [the EAW Framework Decision]?
(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 [ECHR] and, in particular, whether the absence of the requested person involved a [breach] 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 [ECHR] and, in particular, that the absence of the requested person involved a [breach] 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 [ECHR] and/or [Article 47 and Article 48(2) of the Charter] 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 [ECHR] and/or [Article 47 and Article 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 the 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.
PH (C‑515/21)
25.
A Polish judicial authority is seeking the surrender of PH, the appellant in the main proceedings, for the execution of a custodial sentence and has issued an EAW for that purpose. The Court of Appeal, deciding on the appeal against the decision of the High Court, is the executing judicial authority in that context.
26.
PH was convicted in May 2015 of committing, in January of that same year, the offence of a denial-of-service attack (
17
) on a commercial business accompanied by threats to continue the attack unless a monetary payment was made to him. I will refer to that offence as ‘the First Offence’.
27.
PH was duly notified of the proceedings and was present at the trial. He was sentenced to one year’s imprisonment, suspended for a five-year probation period. He appealed neither the conviction nor the sentence.
28.
In February 2017, the conviction took place for what I will again refer to as ‘the Trigger Offence’. Specifically, PH was found guilty of the offence of breaking into a caravan and stealing items therein and was sentenced to 14 months’ imprisonment. He was not aware of the hearing and therefore did not appear at it, either in person or by way of a legal representative.
29.
In May 2017, taking into account that the Trigger Offence was within the probation period for the First Offence, the court that issued the conviction for the latter ordered the enforcement of its prison sentence. (
18
) PH was not aware of those proceedings and therefore did not appear either in person or by way of a legal representative at the hearing that resulted in the enforcement order of the sentence for the First Offence.
30.
In February 2019, an EAW was issued seeking the surrender of PH in respect of the prison sentence for the First Offence only. No EAW has been issued concerning the prison sentence resulting from the conviction for the Trigger Offence.
31.
The Polish judicial authority, upon the request of the High Court (the executing judicial authority at first instance), explained further that the period for appealing the conviction for the Trigger Offence had expired. That same issuing authority added that, under Polish law, it is open to any party to ‘lodge an extraordinary legal remedy (reversal, motion to re-open proceedings)’. It did not, however, provide any further information on that procedure.
32.
PH opposed that surrender before the High Court without success. The referring court is deciding on the appeal against the decision of the High Court to execute the EAW.
33.
In the context of those proceedings, the Court of Appeal referred the following questions to the Court of Justice for a preliminary ruling:
‘(1)
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 subsequent conviction of the requested person for a further criminal offence, in circumstances where the order for enforcement was mandatory by reason of that conviction, are the proceedings leading to that subsequent conviction and/or the proceedings leading to the making of the enforcement order part of the “trial resulting in the decision” for the purposes of Article 4a(l) of [the EAW Framework Decision]?
(2)
In the circumstances set out in question 1 above, is the executing judicial authority entitled and/or obliged to inquire into whether the proceedings leading to the subsequent conviction and/or the proceedings leading to the enforcement order, all of which were conducted in the absence of the requested person, were conducted in compliance with Article 6 [ECHR] and, in particular, whether the absence of the requested person from those proceedings involved a [breach] of the rights of the defence and/or of 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 [ECHR] and, in particular, that the absence of the requested person involved a [breach] 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 the 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?’
IV. The procedure before the Court of Justice
34.
Written observations were submitted by the parties to the main proceedings in the two cases, Ireland and the Polish Government, as well as the European Commission. A hearing was held on 13 July 2022 where LU, PH, Ireland and the Commission presented oral argument.
V. Analysis
35.
The joined cases before us concern multiple proceedings that could be characterised as a ‘trial resulting in the decision’ in the sense of Article 4a(1) of the EAW Framework Decision. The first proceedings resulted in the suspended prison sentence for the First Offence(s); the persons whose surrender is at issue were present at those proceedings. The second proceedings resulted in the conviction for the Trigger Offence; the persons whose surrender is at issue were not present at those proceedings. Finally, the third set of proceedings are those in which it was decided to revoke the suspension of the prison sentence concerning the First Offence(s). In Case C‑514/21, the decision lifting the suspension of the prison sentence was adopted by the same court and at the same trial which led to the finding of guilt and the determination of the sentence for the Trigger Offence. In Case C‑515/21, however, the decision lifting the suspension was adopted by a different court in proceedings that were different to the trial for the Trigger Offence.
36.
The referring court considers it obvious that the absence of the persons whose surrender is sought at their respective trial for the Trigger Offence resulted in a breach of their right to a fair trial. It is thus essentially asking whether it can refuse to execute the EAWs at issue, either on the basis of Article 4a(1) of the EAW Framework Decision directly (the first question) or on the basis of Article 6 ECHR and Articles 47 and 48 of the Charter (the second and third questions).
37.
In order to advise the Court on how to answer the questions referred, I will proceed as follows. In Section A, I will explain why the expression ‘trial resulting in the decision’ from Article 4a(1) of the EAW Framework Decision should be interpreted so as to include the type of trials at issue for the Trigger Offences in the two present cases. That means that Article 4a(1) of the EAW Framework Decision applies to the situations in both cases and that the referring court, provided that none of the conditions under Article 4a(1)(a) to (d) thereof is fulfilled, has the option not to surrender the appellants to Poland or Hungary, respectively. Given that much of the discussions in the written observations, as well as at the hearing, revolved around the three earlier relevant cases – Tupikas, (
19
)Zdziaszek (
20
) and Ardic (
21
) – I will offer my point of view on their relevance to the present cases.
38.
In Section B, I will focus jointly on the second and third questions in both cases, which in my opinion raise issues that are important for the entire system of the EAW as designed by the EU legislature and interpreted by the Court. The referring court did not phrase those questions as depending on the affirmative or negative answer to the first question. Taking that into consideration, I will provide my answer to the second and third questions in both scenarios: if the Court finds that the joined cases fall within the scope of Article 4a(1) of the EAW Framework Decision, as I propose they should, and if the Court finds them to fall outside the scope of that provision.
A.
The first question
39.
The EAW Framework Decision sets out exhaustively the grounds for mandatory (Article 3) and optional (Articles 4 and 4a) non-execution of an EAW. Article 4a of the EAW Framework Decision, the interpretation of which is sought, is applicable only if the person to be surrendered was not present at the ‘trial resulting in the decision’ for the execution of which the surrender is sought.
40.
By its first question, the referring court is seeking the interpretation of the concept of ‘trial resulting in the decision’, as used in the introductory sentence of Article 4a(1) of the EAW Framework Decision. More precisely, the referring court seeks to clarify the scope of that concept and whether it covers the trials for the Trigger Offences. It is also relevant to determine whether the separate proceedings lifting the suspension and enforcing the prison sentences for the First Offences fall under the concept of ‘trial resulting in the decision’.
41.
If the answer to those questions is in the affirmative, the situations in both cases would fall under the material scope of Article 4a(1) of the EAW Framework Decision. The answer of the Court will, therefore, determine whether the executing judicial authority has the option not to execute the EAWs at issue should it find that none of the situations listed in Article 4a(1)(a) to (d) of that framework decision applies.
42.
To answer that question, I will proceed as follows. I will first provide a snapshot of the previous cases in which the Court interpreted the expression ‘trial resulting in the decision’. I will then propose a generally applicable interpretation of that expression, which is in line with the purpose of the right to be present at a trial. Such an interpretation is, as I will show, consistent with earlier case-law. In order to address question 1(b) referred to in Case C‑514/21, I will reflect upon the role of the discretion of the authorities in the issuing State when issuing the enforcement order. Finally, I will address some additional concerns raised during the proceedings, such as the effectiveness of the EAW system and the danger of impunity.
1. The existing case-law interpreting the expression ‘trial resulting in the decision’ and its applicability to the present cases
43.
Considering it an autonomous concept of EU law, the Court has already, on several occasions – notably in cases Tupikas, (
22
)Zdziazsek (
23
) and Ardic (
24
)– interpreted the concept of ‘trial resulting in the decision’ from Article 4a(1) of the EAW Framework Decision. The referring court raises the question of the implications that those judgments carry for the cases at hand and which were also discussed by the parties to those proceedings.
44.
Appeal proceedings (in Tupikas) and proceedings for a decision on combining separate custodial sentences (in Zdziaszek) were both found by the Court to fall under the concept of a ‘trial resulting in the decision’. However, in interpreting that concept, the Court decided that it does not cover proceedings concerning the revocation of a decision on provisional early release from prison (in Ardic).
45.
The situation in the present cases is similar to the abovementioned three judgments in the sense that the original prison sentence was imposed first at the trial determining guilt and was altered in subsequent proceedings which did not re-examine the finding of guilt but only the duration of the deprivation of liberty. The final decision on the sentence was thus, as in the present cases, the result of multiple proceedings.
46.
Despite those similarities, the three judgments are also distinguishable from the situation from which the present references arose. Most importantly, in none of the three cases did the alteration of the originally imposed prison sentence depend on the finding of guilt and the sentence for a different offence. Furthermore, in those cases the Court was only deciding in the light of their specific circumstances and did not give clear or detailed general criteria as to what constitutes a ‘trial resulting in the decision’ for the purposes of the EAW Framework Decision. (
25
) That is why the conclusions in those cases cannot automatically be transferred to the present cases.
47.
In what comes next, I will offer a generally applicable interpretation of the expression ‘trial resulting in the decision’ and then show that such an interpretation, even if not a direct result of the previous cases, does not contradict any of them.
2. The proposed interpretation of ‘trial resulting in the decision’
48.
In order to interpret the expression ‘trial resulting in the decision’ as it appears in Article 4a(1) of the EAW Framework Decision, I consider it important to focus on why the EU legal system protects the right of a person to be present at a trial as a fundamental right.
49.
In Tupikas, the Court explained that ‘the person concerned must be able to fully exercise his rights of defence in order to assert his point of view in an effective manner and thereby to influence
the final decision which could lead to the loss of his personal freedom’. (
26
) The Court added inZdziaszek that the person concerned must be able effectively to exercise his or her rights of defence when it comes to decisions that have an effect on the quantum of sentence, given the significant consequences that may have for the person concerned. (
27
)
50.
To my mind, and the quoted case-law supports this, the ability of a person to influence a judge who has jurisdiction to establish that person’s guilt and impose on him or her a sentence is the crux of the right to be present at the trial. Therefore, especially when a decision involves the deprivation of liberty of a person, he or she must have the opportunity to influence that final decision in person. If the final decision results from multiple proceedings, that person must have the opportunity to participate in all of them.
51.
The purpose of Article 4a(1) of the EAW Framework Decision is to safeguard the right to be present at the trial in the context of a surrender procedure for the execution of a sentence depriving a person of liberty. Therefore, ‘trial resulting in the decision’ must be understood as including any step of the proceedings that contributed to the final decision on the deprivation of liberty in the issuing State.
52.
The decision revoking the suspension of an originally suspended prison sentence is the one that deprives the person in question of liberty. It is, in my view, crucial that the person concerned is present at all the stages that are determinative for making that decision.
53.
In the light of the foregoing, I propose to interpret the expression ‘trial resulting in the decision’ in Article 4a(1) of the EAW Framework Decision as every step of the proceedings having a decisive influence on the final decision on the deprivation of a person’s liberty.
54.
That means that, as proposed by the Commission, all the procedures forming part of those cases – the trials imposing the original suspended prison sentence, the trials sentencing the same persons for the Trigger Offences, and the procedures (if separate) altering the original suspended prison sentence – are ‘trials resulting in the decision’. They are all decisive for the deprivation of liberty for which the surrender of the persons at issue is sought.
55.
The case-law of the Court relating to the concept of ‘trial resulting in the decision’ allows and even supports that proposed interpretation.
3. The existing case-law supporting the proposed interpretation
(a) Can the ‘trial resulting in the decision’ cover multiple proceedings?
56.
In Tupikas, the Court decided the following: ‘in the event that proceedings have taken place at several instances which have given rise to successive decisions, at least one of which was given in absentia, it is appropriate to understand by “trial resulting in the decision”, within the meaning of Article 4a(1) of [the EAW Framework Decision], the instance which led to the last of those decisions …’ (
28
)
57.
That sentence might suggest that only the last proceedings are relevant for determining whether Article 4a(1) of the EAW Framework Decision applies.
58.
However, in Zdziaszek, decided the same day as Tupikas, the Court explained the following: ‘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 [the EAW Framework Decision].’ (
29
)
59.
That suggests that the Court’s position is that multiple stages of proceedings are all relevant for triggering the application of Article 4a(1) of the EAW Framework Decision if they are determinative for the sentence depriving a person of liberty. The quoted paragraph from Tupikas must, therefore, be understood in the context of that case: the Court was answering the referring court’s question on whether appeal proceedings are a ‘trial resulting in the decision’ if the person appeared at first instance, but not at the appeal stage. That statement does not prevent the suggested interpretation, according to which all proceedings which contribute to the decision on the deprivation of liberty (
30
) are covered by the expression ‘trial resulting in the decision’.
60.
The present cases differ from the earlier ones given that the trials for the Trigger Offences, which took place in absentia, were not conducted in respect of the suspended prison sentence for which the EAW was issued. The effect of those trials on the final decision on the sentence for the First Offence(s) was only incidental. At the same time, it was also decisive.
61.
While not directly resolving whether such a trial is one ‘resulting in the decision’, the earlier case-law does not prevent an interpretation according to which such a trial, if decisive for the final decision on the sentence, enters within the scope of that concept.
62.
The decisions lifting the suspension of the prison sentence for the First Offence(s) were dependent on the finding of guilt for the Trigger Offences in the second trial and on the nature and duration of the sentence imposed for those offences. Given that the trials for the Trigger Offences were the determinative part of the decisions lifting the suspension of the prison sentence for the First Offence(s), they form part of the ‘trial resulting in the decision’ in the sense of Article 4a(1) of the EAW Framework Decision.
(b) Are decisions revoking the suspension of the prison sentence only a method of execution of the sentence and thus excluded from the notion of ‘trial resulting in the decision’?
63.
In Zdziaszek, (
31
) referring to the case-law of the European Court of Human Rights (‘the ECtHR’), (
32
) the Court distinguished between, on the one hand, the final decision determining the nature and level of the punishment imposed, and, on the other, the method of execution of the custodial sentence imposed. It concluded that ‘trial resulting in the decision’ covers the first group of procedures, but not the second. (
33
)
64.
That determination played a decisive role in Ardic. The referring court, like all the participants in the proceedings before the Court, principally focused on the consequences of that judgment for the resolution of the two joined cases at hand.
65.
At issue in Ardic was the revocation of the provisional release from prison before the end of the prison sentence. Mr Ardic, a German national, was sentenced to a prison sentence in Germany imposed by two judgments. Having served a portion of that sentence, he was granted a suspension of the execution of its remainder. More specifically, under German law, after a certain part of the custodial sentence is served and additional conditions are met, the remainder of the custodial sentence may be conditionally suspended and provisional release granted. (
34
)
66.
However, Mr Ardic did not comply with the conditions attached to the provisional release. Consequently, a German court revoked the provisional release in proceedings where Mr Ardic was not present. The question for the Court to answer in Ardic, which arose before the Rechtbank Amsterdam (District Court, Amsterdam, Netherlands) deciding on the execution of the EAW, was whether the proceedings for revoking the provisional release constituted a ‘trial resulting in the decision’ for the purposes of applying Article 4a(1) of the EAW Framework Decision.
67.
In Ardic, the Court indeed repeated that, according to the case-law of the ECtHR, detailed rules for the execution or application of custodial sentences do not fall under Article 6(1) ECHR and, therefore, do not fall under Article 4a(1) of the EAW Framework Decision either. (
35
) Applying that logic to the situation of Mr Ardic, the Court found that the decision at issue in that case did not fall under Article 4a(1) of the EAW Framework Decision.
68.
The judgment in Ardic deserves some criticism. For instance, it is far from clear why the ECtHR case-law interpreting the expression ‘criminal charges’ (relevant for the application of Article 6 ECHR) should automatically be transposed to the interpretation of Article 4a(1) of the EAW Framework Decision. (
36
) The Court’s almost exclusive reliance on the Boulois v. Luxembourg (
37
) case, which concerned the refusal of a request for a temporary release from prison lasting one day, (
38
) in order to justify the finding that a decision revoking provisional release is the method of execution of a sentence, also seems difficult to defend. However, reducing Ardic to a formalistic reading, whereby decisions should always be placed in either the box ‘method for executing a sentence’ or the box ‘decision on nature and quantum of sentence’, does not do justice to the reasoning of the Court.
69.
The most important finding of the Court in Ardic is, in my view, the following: ‘In the light of the foregoing, it must therefore be considered that, for the purposes of Article 4a(1) of [the EAW Framework Decision], the concept of “decision” referred to therein does not cover a decision relating to the execution or application of a custodial sentence previously imposed, except where the purpose or effect of that decision is to modify either the nature or quantum of that sentence and the authority which adopted it enjoyed some discretion in that regard’. (
39
)
70.
The formal distinction between, on the one hand, decisions on the execution of sentences and, on the other hand, those on the nature and quantum of sentence did not seem to play a decisive role in determining whether the decision at issue was a ‘decision’ in the sense of Article 4a(1) of the EAW Framework Decision. What was important was that a decision has either the purpose or effect of modifying the sentence previously imposed. It was also important that modifying the sentence is not automatic but depends on the discretion of the deciding authority, a fact to which I will return in the following section.
71.
Whether one agrees or not with the application of that interpretation to the situation in Ardic, it seems that in that case the Court was influenced by the fact that Mr Ardic left Germany, thus clearly breaching the conditions of his provisional release. (
40
) It was not, therefore, a decision of a court that triggered the revocation of the suspension of the provisional release, but the fact that Mr Ardic clearly infringed the terms of that provisional release.
72.
That finding, in the specific circumstances of Ardic, does not mean that the proceedings in the present cases, both in relation to the Trigger Offences and the revocation of the suspension of the prison sentences after the convictions for those offences, do not fall within the scope of Article 4a(1) of the EAW Framework Decision.
73.
The effect of the trials for the Trigger Offences was that the alteration of the sentences imposed in the first trials became either inevitable or at least possible. Therefore, those persons concerned should have been given the opportunity to defend themselves at the trial for the Trigger Offences. (
41
) Being present at those trials was, of course, important for their rights of defence in relation to the Trigger Offences themselves; however, it is not important from the point of view of Article 4a(1) of the EAW Framework Decision. What is important is that their defence at the trials for the Trigger Offences might have influenced the alteration of the sentences for the First Offence(s), for which the EAWs were issued. (
42
)
74.
As to the proceedings concerning the revocation of the suspension, if they exist separately from the trial for the Trigger Offences, their very purpose is a possible alteration of the previous decision concerning the sentence. Therefore, if the deciding authority has any discretion in relation to a decision to lift the suspension, those proceedings are comprised by the statement of the Court in Ardic, as reproduced in point 69 of the present Opinion.
75.
In conclusion, previous case-law does not prevent, but even supports, the conclusion that a ‘trial resulting in the decision’ is every procedure having a decisive influence (by its effect or purpose) on the final decision imposing the prison sentence for which an EAW is issued.
76.
The arguments of the Minister for Justice and Equality and Ireland which referred to Ardic to conclude that the present joined cases present a simple method of execution and therefore fall outside the scope of Article 4a(1) of the EAW Framework Decision cannot, therefore, be accepted.
77.
Depriving LU and PH of raising their defences at the trials for the Trigger Offences may, therefore, be the reason for refusing to execute the EAW if none of the conditions under Article 4a(1)(a) to (d) of the EAW Framework Decision is fulfilled.
4. Discretion of the authority deciding on the alteration of the sentence
78.
By question 1(b) in Case C‑514/21, the referring court seeks to determine the relevance of the possible existence of discretion for the court in the issuing State when deciding on the revocation of suspension.
79.
As previously explained, in relation to the implications of Ardic for the present cases, the discretion of the deciding body matters for the qualification of a decision as one falling within the scope of Article 4a(1) of the EAW Framework Decision. However, the discretion of the authority deciding on the revocation of the suspension, as seems to be the case in C‑514/21, does not exclude the trial for the Trigger Offences from the scope of Article 4a(1) of the EAW Framework Decision.
80.
Let me clarify.
81.
Decisions lifting the suspension, whether automatic (as in C‑515/21) or subject to the discretion of the deciding body (as in C‑514/21), could not have been adopted had it not been for the finding of guilt and the imposition of the prison sentences for the Trigger Offences. Had the persons whose surrender is sought appeared at the trials for the Trigger Offences, they may have been able to disprove their guilt or influence the sentence. That is so because the court deciding on the Trigger Offences enjoyed a certain discretion in relation to the nature and the level of the sentence. (
43
)
82.
Had the guilt for the Trigger Offences not been established or the sentence remained only financial, the suspension revocation proceedings would not even have taken place. The trials for the Trigger Offences were the ones triggering (hence their name) the alteration of the sentences for the First Offence(s).
83.
That is obviously true in a situation in which the revocation of the suspension is automatic. However, it is equally true in a situation where the deciding authority enjoys discretion as regards lifting the suspension. The latter discretion would not have arisen had it not been for the sentence for the Trigger Offences. That is why, to properly safeguard their rights of defence, the persons concerned had to be able to be present both at the trial for Trigger Offences and at the separate proceedings modifying the first prison sentence, if the authorities enjoyed discretion in those latter proceedings.
84.
The discretion of the body deciding on the revocation of the suspension therefore does not influence the finding that the trials for the Trigger Offences fall within the scope of Article 4a(1) of the EAW Framework Decision. It is, however, important for deciding whether such proceedings, if they take place separately, as seems to be the case in C‑515/21, are also covered by the expression ‘trial resulting in the decision’. (
44
)
85.
The person whose liberty is at stake should be able to appear in person at those proceedings if the deciding authority has discretion not to revoke or to revoke only partially the suspension of the prison sentence after the finding of guilt for the Trigger Offence. Such proceedings are, therefore, also a ‘trial resulting in the decision’, alongside the trials for the Trigger Offence, and the person to be surrendered must be given an opportunity to be present at both proceedings.
86.
On the contrary, if the decision to revoke the suspension of a prison sentence is only declaratory and follows automatically from the finding of guilt and the determination of the sentence for the Trigger Offences, only that latter trial (and not the revocation proceedings, if separate) is the ‘trial resulting in the decision’ in the sense of Article 4a(1) of the EAW Framework Decision. That seems to be the case in C‑515/21.
5. The effectiveness of the EAW mechanism
87.
The Court has warned in Ardic that overextending the concept of ‘trial resulting in the decision’ might jeopardise the effectiveness of the EAW mechanism. (
45
)
88.
I agree that the scope of Article 4a(1) of the EAW Framework Decision should not be interpreted widely, given that it represents the exception to the general rule that the executing authority should trust the issuing authority and execute the EAW automatically. (
46
) However, the purpose of inserting Article 4a into that framework decision was not only to make the EAW mechanism more efficient, but also to enhance the level of protection of the right to be present at the trial. (
47
)
89.
It is worth noting in that respect that Article 4a(1) did not figure in the original version of the EAW Framework Decision but was added by the amending Framework Decision 2009/299. The aim of that 2009 amendment was to ‘provide clear and common grounds for non-recognition of decisions rendered following a trial at which the person concerned did not appear in person’, (
48
) which applies across different pieces of EU legislation relating to judicial cooperation in criminal matters. (
49
)
90.
Article 4a(1) of the EAW Framework Decision, which resulted from the aforementioned amendments, harmonises the conditions under which the authority executing an EAW, in any Member State, is allowed not to recognise a decision of a court of the issuing State adopted in a trial conducted in absentia. The amendment takes into consideration that the right to appear at the trial forms part of Article 6 ECHR, as interpreted by the ECtHR, but also that that right is not absolute. (
50
)
91.
Specifically, the accused person may waive their right to be present at the trial of his or her own free will, expressly or tacitly, but unequivocally. (
51
)
92.
To establish that that is the case, Article 4a(1) of the EAW Framework Decision provides for situations when the executing authority must conclude that the person whose surrender is demanded by an EAW waived his or her right to appear in person at the trial (or retrial) in the issuing State (Article 4a(1)(a) to (c) of the EAW Framework Decision). If one of those conditions is met, or if there is a possibility of a retrial in the issuing State after surrender (Article 4a(1)(d) of the EAW Framework Decision), the executing authority must surrender the person wanted by an EAW. (
52
) That is so because if one of those conditions is met, the person was (or will be) given a chance to be present at the trial and influence the final decision. On the contrary, if none of those conditions is met, then, and only then, does the EAW Framework Decision authorise the executing authority to refuse the surrender.
93.
Article 4a(1) of the EAW Framework Decision therefore paves the way for a harmonised and easy surrender, but at the same time respects the high level of protection granted to persons accused of crimes, who are given a chance to defend themselves at their trial.
94.
Therefore, the effectiveness of the EAW mechanism cannot be achieved at the cost of fundamental rights enjoyed by individuals under the EU constitutional order.
95.
The European Union’s understanding of the acceptable limits to the right to be present at a trial is clearly presented in points (a) to (d) of Article 4a(1) of the EAW Framework Decision. Those limits are set at a level of protection higher than that afforded under Article 6 ECHR. (
53
) That choice by the EU legislature was confirmed by Directive 2016/343. (
54
)
96.
A person who might be deprived of liberty must be given a real opportunity to influence such a decision. For that, as I have explained, it is necessary that that person has the chance to be present at all instances of proceedings which decisively influence the decision on the deprivation of liberty.
97.
Thus, even if one might argue that the EAW system would be more efficient if the trials for the Trigger Offences did not form part of the ‘trial resulting in the decision’, such an interpretation would run counter to the level of protection of the right to be present at the trial as harmonised at EU level.
98.
The level of protection chosen by the EU legislature and effective in all Member States cannot be decreased on account of the concerns for the effective functioning of the EAW mechanism.
99.
Therefore, the argument that the interpretation which treats every instance of proceedings that may influence the decision depriving the person of liberty as the ‘trial resulting in the decision’ will jeopardise the EAW mechanism cannot be accepted.
6. The danger of impunity
100.
What about impunity? Would LU and PH possibly avoid a prison sentence that they were due to serve in their respective issuing Member State if the trials for the Trigger Offences were to be included in the concept of ‘trial resulting in the decision’? I think not.
101.
The sentence imposed on them following the trials for their First Offence(s) did not result in the deprivation of liberty. If subsequent proceedings activating the deprivation of liberty suffer from defects, that deprivation of liberty would in itself also be defective. In that sense, the Commission is right to point out that it would not have been possible to issue an EAW in the two cases without the existence of the trials for the Trigger Offence. Excluding the subsequent trials from the scope of Article 4a(1) of the EAW Framework Decision would therefore possibly lead to an unlawful deprivation of liberty.
7. Interim conclusion
102.
I therefore consider that The term ‘trial resulting in the decision’ in the sense of Article 4a(1) of the EAW Framework Decision is to be interpreted as any step of the proceedings which has the decisive influence on the decision on the deprivation of a person’s liberty. That is so because the person in question must be given the opportunity to influence the final decision concerning his or her liberty.
103.
In consequence, I find that both trials (for the First Offence(s) and for the Trigger Offences) fall within the scope of Article 4a(1) of the EAW Framework Decision.
B.
The second and third questions
104.
By its second and third questions in both cases, which I will examine together, the referring court is asking the following: is it entitled (or even obliged) to inquire whether the proceedings for the Trigger Offences and consequent enforcement orders in the issuing State breached the right to a fair trial guaranteed by Article 6 ECHR? Assuming that an infringement of that article is found, is the executing authority entitled or even obliged to refuse the execution of the EAW or to subject surrender to the issuing state to conditions? Does such an inquiry require an assessment of the breach of the essence of the fundamental right guaranteed by Article 6 ECHR, and what is the essence of that right in a situation in which proceedings were conducted in absentia?
105.
Those questions merit a different analysis depending on the answer to the first question. In other words, the answers depend on whether the trials for the Trigger Offences and the resulting enforcement orders are within the scope of Article 4a(1) of the EAW Framework Decision or not. In order to assist the Court fully, I will present my opinion for either of the two routes the Court ultimately decides to take.
106.
It is important to note at the outset that those questions arise out of the conflict between, on the one hand, the obligation of national courts to verify and guarantee the respect of Article 6 ECHR and, on the other hand, the idea of mutual trust on which the EAW mechanism rests, under which the executing authority must, in principle, execute an EAW automatically without questioning the procedures in the issuing State.
1. Option 1: The trials for the Trigger Offences fall within the scope of Article 4a(1) of the EAW Framework Decision
107.
Should the Court find, as I have suggested, that the trials for the Trigger Offences are both the ‘trial resulting in the decision’, then Article 4a(1) of the EAW Framework Decision applies. In such a case, an obligation to surrender or an option not to surrender depends entirely on the conditions set by that provision.
108.
If the executing authority finds that one of those conditions is fulfilled, for example that there is a possibility for a retrial in the issuing State after surrender, as envisaged under Article 4a(1)(d) of the EAW Framework Decision, the executing authority must execute the EAW. (
55
) If one of the conditions of Article 4a(1)(a) to (d) of that framework decision is satisfied, there is no infringement of Article 6 ECHR. Consequently, no additional inquiry into possible infringements of that provision is necessary.
109.
Such a conclusion follows from the purpose of Article 4a(1) of the EAW Framework Decision. As explained in point 89 of this Opinion, that provision was introduced to harmonise conditions under which the right to be present at a trial can be limited. Such conditions fully satisfy the requirements of Article 6 ECHR and its interpretation, (
56
) if not even provide for a higher level of protection of that fundamental right in comparison to the ECHR. (
57
)
110.
Therefore, when complying with the obligation to surrender under Article 4a(1) of the EAW Framework Decision, the executing authority is necessarily also meeting its obligations under Article 6 ECHR.
111.
On the contrary, if none of the conditions set out in Article 4a(1)(a) to (d) of the EAW Framework Decision is met, an option for the executing authority not to execute an EAW arises. That means that the executing authority can decide to execute the EAW or not.
112.
An additional question, therefore, concerns the method by which the executing authority should exercise such discretion. Does EU law, including the EAW Framework Decision itself, govern the exercise of that discretion?
113.
In my opinion, regarding the option not to surrender, nothing more than finding that none of the conditions of Article 4a(1) of the EAW Framework Decision is fulfilled is necessary under EU law.
114.
However, the level of protection offered under Article 4a(1) of the EAW Framework Decision may, in certain circumstances, be higher than the one under Article 6 ECHR. (
58
) Consequently, there is a possibility that no infringement of Article 6 ECHR took place, even though the right to be present at a trial, as understood under the EU legal order, may not have been complied with. Must the executing authority in such a case be satisfied that Article 6 ECHR was not infringed before deciding to surrender? In my opinion, the answer to that question is not a matter of EU law.
115.
The executing authority may – but does not have to, even after having found that conditions of Article 4a(1) of the EAW Framework Decision were not satisfied – take into account other circumstances that might assure it that the surrender of the person concerned does not mean a breach of his or her rights of defence under Article 6 ECHR, and then surrender the person. (
59
)
116.
A more difficult question is: can the executing authority decide to surrender a person even if the conditions of Article 4a(1) of the EAW Framework Decision are not fulfilled and the surrender could, at the same time, result in a possible infringement of Article 6 ECHR?
117.
In my opinion, in such a case, the EAW Framework Decision still grants an option to the executing authority and does not prevent a decision to surrender. The obvious objection to that conclusion is that it opens the possibility of a breach of the fundamental right to a fair trial of the person at issue. Can that be allowed under the Charter, or indeed under Article 1(3) of the EAW Framework Decision? Of course not. However, the responsibility for fundamental rights protection belongs, in such a scenario, to the issuing State (as I will explain in more detail when analysing the scenario under which Article 4a(1) of the EAW Framework Decision does not apply to the present cases).
118.
It follows that Article 4a(1) of the EAW Framework Decision is exhausted at the point of creating the option for the executing authority not to surrender.
119.
Finally, when choosing to execute an EAW under the discretion granted under Article 4a(1) of the EAW Framework Decision, the executing judicial authority cannot, in my view, place conditions on the issuing judicial authority. That would run counter to the swift operation of the EAW system and indeed place a strain on the mutual trust between the two judicial authorities. The option contained in Article 4a(1) of the EAW Framework Decision is one between execution and non-execution, but does not grant the executing judicial authority the power to distort the way in which execution is done. (
60
)
2. Interim conclusion
120.
When a situation falls under Article 4a(1) of the EAW Framework Decision, the executing authority need only examine whether the conditions stated in that article are fulfilled. By doing so, it is necessarily also fulfilling its obligations to respect Article 6 ECHR.
3. Option 2: The trials for the Trigger Offences fall outside the scope of Article 4a(1) of the EAW Framework Decision
121.
The second and third questions in both cases make more sense if the Court finds that the trials for the Trigger Offences (or the enforcement hearing) do not form part of the ‘trial resulting in the decision’. In that scenario, no option for the executing authority to refuse to execute an EAW arises under the EAW Framework Decision.
122.
In the light of the current interpretation of the EAW Framework Decision, the answer to whether the executing authority can inquire into possible infringements of Article 6 ECHR and, if found, whether it can decide not to execute the EAW, seems simple: no, it cannot. The EAW Framework Decision offers an exhaustive list of reasons for the non-execution of an EAW and Member States may not add grounds that are not listed therein. (
61
)
123.
However, that appears to pose a problem to a growing number of national courts faced with executing EAWs which, at the same time, find themselves under an obligation to comply with Article 6 ECHR. (
62
) The referring court seems to be of the opinion that surrender in the two cases at hand would result in a ‘flagrant denial of justice’ (
63
) and thus place it in a position of breaching its own obligations under the ECHR. These concerns of national executing authorities should not be ignored.
124.
The question that those cases therefore implicitly raise is whether Article 1(3) of the EAW Framework Decision allows for additional reasons to refuse surrender, especially if the surrender would result in a ‘flagrant denial of justice’, or, as framed in the referring court’s questions, in the breach of the essence of the fundamental right to a fair trial.
125.
Article 1(3) of the EAW Framework Decision clearly states that the application of that act should not result in a breach of fundamental rights and principles recognised by the EU legal order. Therefore, the question of the referring court can be understood as asking if it is entitled, even if none of the situations enumerated in the EAW Framework Decision applies, to refuse surrender if it nevertheless found that there is a possibility of a breach of the fundamental right to a fair trial following surrender in the issuing State.
126.
The Court has thus far established such a possibility based on Article 1(3) of the EAW Framework Decision in two situations. First, in Aranyosi and Căldăraru, (
64
) the Court found that the risk of inhuman or degrading treatment, an absolute fundamental right, (
65
) is a reason to refuse surrender. Second, in LM, (
66
) the Court found that the risk of a breach of the right to a fair trial could also justify a refusal to surrender. (
67
)
127.
However, in both situations, the doubt that a fundamental right of the person to be surrendered might not be respected was triggered by the initial finding by the executing authority that there is a generalised or systemic problem with the protection of fundamental rights in the issuing State. In Aranyosi and Căldăraru, (
68
) the possibility for the executing authority to assess whether the person whose surrender was sought would be submitted to inhuman or degrading treatment was dependent on the initial finding that systemic or generalised deficiencies which affect certain groups of people or certain places of detention exist. In LM (
69
) and subsequent cases, (
70
) before concluding that the right to a fair trial of a person to be surrendered is at risk, the executing authority first had to verify that there is a systemic or generalised lack of independence of the courts of the issuing Member State.
128.
The justification of the Court’s findings in the described line of cases is that mutual trust, underpinning mutual recognition, is lacking due to systemic deficiencies. The knowledge of such deficiencies, therefore, allows the executing authority to raise doubts concerning the procedures in the issuing State and verify whether the right of the person to be surrendered is at risk of being breached.
129.
Without such systemic or generalised deficiencies, however, I see no reason for the executing authority to verify whether the right of the person to be surrendered will be breached by the issuing State outside the situations contemplated by the EAW Framework Decision.
130.
On the contrary, allowing such verifications would be contrary to the idea of mutual trust on which the EAW mechanism is based. That mechanism rests on the idea that each Member State respects common fundamental values and endeavours to ensure their protection. (
71
)
131.
The EAW mechanism was introduced so that surrender can happen quickly, based on the trust in other States’ institutions. Allowing verifications of the respect of fundamental rights in each individual case means the reversal of the EAW mechanism to something more similar to the pre-existing extradition procedures.
132.
Should that be necessary, it is my opinion that such an amendment of the EAW mechanism as introduced by the EAW Framework Decision is not for the Court, but for the EU legislature to make.
133.
I cannot exclude that situations might arise in which allowing for a verification of potential individual breaches of fundamental rights of the person whose surrender is sought would prove necessary, regardless of the lack of systemic deficiencies in the issuing State. However, in an area in which harmonisation at EU level took place, such as the matter of acceptable limitations of the right to be present at the trial, (
72
) I see no reason to add exceptions to the system of the EAW as it is designed under the EAW Framework Decision.
134.
The Court has already considered that the person whose surrender is sought cannot rely, in order to oppose surrender by the executing State, on the failure by the issuing State to transpose Directive 2016/343, harmonising, among others, certain aspects of the right to be present at the trial in criminal proceedings. The Court further explained that the obligation of the issuing Member State to comply, within its legal system, with all provisions of EU law, including Directive 2016/343, remains intact. (
73
) It is the issuing State that must provide for a remedy, available before its courts, to enforce the respect of that directive.
135.
Therefore, obliging the executing authority to surrender a person outside the situations set out in the EAW Framework Decision does not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 TEU. (
74
) After surrender, as observed by Ireland, the responsibility to ensure fundamental rights still exists for the issuing Member State. (
75
)
136.
Therefore, should the Court find that the trials for the Trigger Offences do not fall within the scope of Article 4a(1) of the EAW Framework Decision, I am of the opinion that the executing authority is under the obligation to execute the EAW. Lacking any concern about systemic deficiencies in the issuing Member State, the executing authority should not be allowed to verify compliance with Article 6 ECHR in that former State in respect of the person whose surrender is sought, but is obliged to execute the EAW.
137.
Finally, in question 3(b) in both cases, the referring court asks whether assessing possible breaches, which would allow the executing authority to refuse surrender, should be limited to those of the essence of the fundamental right to a fair trial.
138.
In my opinion, aside from the situations envisaged by the EAW Framework Decision and where systemic deficiencies in the judicial system of the issuing Member State are lacking, the EAW mechanism does not create a space for the executing authority to verify whether the essence of the fundamental right to a fair trial of the requested persons is, or would be, breached.
4. Interim conclusion
139.
When a situation does not fall under Article 4a(1) of the EAW Framework Decision and where systemic deficiencies in the judicial system of the issuing Member State are lacking, the executing authority cannot verify whether the fundamental right to a fair trial of the requested persons is, or would be, breached, but must execute the EAW.
140.
Following the execution of the EAW, the issuing State retains the responsibility to guarantee fundamental rights of the surrendered person.
VI. Conclusion
141.
In the light of the foregoing considerations, I propose that the Court answer the questions referred for a preliminary ruling by the Court of Appeal (Ireland) as follows:
(1)
The term ‘trial resulting in the decision’ in the sense of Article 4a(1) of Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States is to be interpreted as any step of the proceedings which has the decisive influence on the decision on the deprivation of a person’s liberty. That is so because the person in question must be given the opportunity to influence the final decision concerning his or her liberty.
(a)
Where surrender 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 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, the proceedings leading to that subsequent conviction and the enforcement order form part of the ‘trial resulting in the decision’ for the purposes of Article 4a(1) of Framework Decision 2002/584.
(b)
In order to hold the proceedings leading to the subsequent conviction a ‘trial resulting in the decision’ for the purposes of Article 4a(1) of Framework Decision 2002/584, it is not relevant whether the court that made the enforcement order was obliged to make that order as a matter of law or whether it had discretion to do so. It is relevant, however, that those proceedings had a determinative effect on the reopening of the decision on the sentence leading to the enforcement order.
(2)
When a situation falls under Article 4a(1) of Framework Decision 2002/584, the executing authority need only examine whether the conditions stated in that article are fulfilled. By doing so, it is necessarily also fulfilling its obligations to respect Article 6 of the European Convention on Human Rights.
When a situation does not fall under Article 4a(1) of Framework Decision 2002/584 and where systemic deficiencies in the judicial system of the issuing Member State are lacking, the executing authority cannot verify whether the fundamental right to a fair trial of the requested persons is, or would be, breached, but must execute the EAW. Following the execution of the EAW, the issuing State retains the responsibility to guarantee the fundamental rights of the surrendered person.
(
1
)	Original language: English.
(
2
)	Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (OJ 2002 L 190, p. 1), as amended by Council Framework Decision 2009/299/JHA of 26 February 2009 amending Framework Decisions 2002/584, 2005/214/JHA, 2006/783/JHA, 2008/909/JHA and 2008/947/JHA, thereby enhancing the procedural rights of persons and fostering the application of the principle of mutual recognition to decisions rendered in the absence of the person concerned at the trial (OJ 2009 L 81, p. 24) (‘the EAW Framework Decision’).
(
3
)	These are set out in Articles 3, 4 and 4a of the EAW Framework Decision.
(
4
)	Judgment of 5 April 2016, Aranyosi and Căldăraru (C‑404/15 and C‑659/15 PPU, EU:C:2016:198, paragraph 89).
(
5
)	Judgment of 25 July 2018, Minister for Justice and Equality (Deficiencies in the system of justice) (C‑216/18 PPU, EU:C:2018:586, paragraph 61).
(
6
)	Cases cited in footnotes 4 and 5 above and judgment of 17 December 2020, Openbaar Ministerie (Independence of the issuing judicial authority) (C‑354/20 PPU and C‑412/20 PPU, EU:C:2020:1033, paragraphs 51 and 52); see, also, judgment of 22 February 2022, Openbaar Ministerie (Tribunal established by law in the issuing Member State) (C‑562/21 PPU and C‑563/21 PPU, EU:C:2022:100, paragraphs 50, 52, 67 and 68).
(
7
)	Puig Gordi and Others (C‑158/21); E. D. L. (Motif de refus fondé sur la maladie) (C‑699/21); and GN (C‑261/22).
(
8
)	Judgment of 26 February 2013, Melloni (C‑399/11, EU:C:2013:107, paragraphs 37 and 63); Opinion 2/13 (Accession of the European Union to the ECHR) of 18 December 2014 (EU:C:2014:2454, paragraph 191).
(
9
)	In that respect, see Council Framework Decision 2009/299. See, also, Directive (EU) 2016/343 of the European Parliament and of the Council of 9 March 2016 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings (OJ 2016 L 65, p. 1) and judgment of 26 February 2013, Melloni (C‑399/11, EU:C:2013:107, paragraphs 62 and 63).
(
10
)	See also, in that respect, Opinion of Advocate General Richard de la Tour in Puig Gordi and Others (C‑158/21, EU:C:2022:573, point 60). At the time of delivery of this Opinion, that case is still pending before the Court.
(
11
)	It should be noted that the referring court is deciding on the appeal against the decision of the High Court (Ireland), which was the first instance court dealing with the EAW in question and decided that it should be executed.
(
12
)	Given that the appellant in the main proceedings spent a month in custody during the trial at first instance, he has a maximum of 11 months left to serve.
(
13
)	According to available information, the Trigger Offence was committed in 2008, and therefore during the probation period for the First Offences.
(
14
)	The parties at the hearing before the Court were not able to confirm who had initiated that appeal.
(
15
)	It is not possible to conclude from the file whether there was any discretion in revoking that probation. Hence, in this case, unlike in Case C‑515/21, the referring court also questions the relevance of a possible existence of discretion in revoking the probation for the First Offences.
(
16
)	The referring court indicated that due to time limits, the sentence for the Trigger Offence is now spent; that was also confirmed at the hearing before the Court.
(
17
)	A denial-of-service attack is a cyberattack in which the perpetrator seeks to make a machine or network resource unavailable to its intended users by temporarily or indefinitely disrupting the services of a host connected to a network. It is typically accomplished by flooding the targeted machine or resource with superfluous requests in an attempt to overload systems and prevent some or all legitimate requests from being fulfilled.
(
18
)	According to the available information on that outcome, the issuing judicial authority referred to the enforcement order as ‘obligatory’.
(
19
)	Judgment of 10 August 2017, Tupikas (C‑270/17 PPU, EU:C:2017:628).
(
20
)	Judgment of 10 August 2017, Zdziaszek (C‑271/17 PPU, EU:C:2017:629).
(
21
)	Judgment of 22 December 2017, Ardic (C‑571/17 PPU, EU:C:2017:1026).
(
22
)	Judgment of 10 August 2017, Tupikas (C‑270/17 PPU, EU:C:2017:628).
(
23
)	Judgment of 10 August 2017, Zdziaszek (C‑271/17 PPU, EU:C:2017:629).
(
24
)	Judgment of 22 December 2017, Ardic (C‑571/17 PPU, EU:C:2017:1026).
(
25
)	Mitsilegas, V., ‘Autonomous concepts, diversity management and mutual trust in Europe’s area of criminal justice’, Common Market Law Review, Vol. 57(1), 2020, pp. 45-78, at p. 62.
(
26
)	Judgment of 10 August 2017, Tupikas (C‑270/17 PPU, EU:C:2017:628, paragraph 84); emphasis added.
(
27
)	Judgment of 10 August 2017, Zdziaszek (C‑271/17 PPU, EU:C:2017:629, paragraphs 87 and 91).
(
28
)	Judgment of 10 August 2017, Tupikas (C‑270/17 PPU, EU:C:2017:628, paragraph 81).
(
29
)	Judgment of 10 August 2017, Zdziaszek (C‑271/17 PPU, EU:C:2017:629, paragraph 93).
(
30
)	It also follows clearly from the earlier case-law that a ‘decision’ in the sense of Article 4a(1) of the EAW Framework Decision can concern either the final determination of guilt or the final imposition of a sentence, or both. See judgments of 10 August 2017, Tupikas (C‑270/17 PPU, EU:C:2017:628, paragraphs 78 and 83), and of 10 August 2017, Zdziaszek (C‑271/17 PPU, EU:C:2017:629, paragraph 94). In the cases at hand, the questions referred deal with decisions concerning prison sentences for the First Offence(s), not the decisions determining the guilt for that or those offences.
(
31
)	Judgment of 10 August 2017, Zdziaszek (C‑271/17 PPU, EU:C:2017:629, paragraphs 85 and 87).
(
32
)	The Court referred to the following ECtHR cases: ECtHR, 21 September 1993, Kremzow v. Austria (CE:ECHR:1993:0921JUD001235086, § 67), concerning the lack of presence at the appeal hearing that concerned the change of a long-term prison sentence to life imprisonment as well as deciding whether that sentence should be served in a normal prison or in a psychiatric hospital, which the ECtHR found to be a violation of Article 6(1) ECHR; ECtHR, 3 April 2012, Boulois v. Luxembourg (CE:ECHR:2012:0403JUD003757504, § 87), concerning the rejection of a request for a one-day prison leave that was found not to form part of the criminal head of Article 6(1) ECHR; and ECtHR, 28 November 2013, Dementyev v. Russia (CE:ECHR:2013:1128JUD004309505, § 23), concerning the lack of presence at the hearing that determined an aggregate sentence that was found to form part of the criminal head of Article 6(1) ECHR.
(
33
)	Judgment of 10 August 2017, Zdziaszek (C‑271/17 PPU, EU:C:2017:629, paragraph 85).
(
34
)	For the presentation of the relevant legal framework in Mr Ardic’s case, see judgment of 22 December 2017, Ardic (C‑571/17 PPU, EU:C:2017:1026, paragraphs 19 to 30), and Opinion of Advocate General Bobek in Ardic (C‑571/17 PPU, EU:C:2017:1013, points 29 to 33).
(
35
)	Judgment of 22 December 2017, Ardic (C‑571/17 PPU, EU:C:2017:1026, paragraph 75).
(
36
)	In that respect, I refer the reader to the Opinion of Advocate General Bobek in Ardic (C‑571/17 PPU, EU:C:2017:1013, point 46).
(
37
)	Case ECtHR, 3 April 2012, Boulois v. Luxembourg (CE:ECHR:2012:0403JUD003757504, § 87). It is worth noting that the ECtHR case-law is not conclusive when it comes to setting a clear rule on what represents a decision on the nature or quantum of a sentence as opposed to one on the methods for executing a sentence.
(
38
)	Which is hardly comparable to the suspension of the remainder of a prison sentence, as rightly pointed out by LU in his written observations.
(
39
)	Judgment of 22 December 2017, Ardic (C‑571/17 PPU, EU:C:2017:1026, paragraph 77); emphasis added.
(
40
)	See, in that respect, judgment of 22 December 2017, Ardic (C‑571/17 PPU, EU:C:2017:1026, paragraph 80). All the parties at the hearing before the Court agreed that Ardic can be distinguished from the present two cases on facts. Indeed, the revocation of provisional release in Ardic was not based on a determination of guilt, but rather following the determination that Mr Ardic had left Germany in contravention of the conditions of his provisional release. In the present two cases, the revocation is the consequence of a criminal procedure that resulted in a finding of guilt, the hearings at which the two appellants were not present.
(
41
)	The fact that the persons to be surrendered were aware that a conviction for a new offence would or might lead to the revocation of the suspension of the first prison sentence does not change that conclusion. In paragraph 83 in Ardic, the Court, on the contrary, considered that Mr Ardic’s awareness of the fact that he could not leave the country was an argument for excluding the decision revoking the release decision from the scope of Article 4a(1) of the EAW Framework Decision. That may be explained by the Court’s finding that such a breach of the release conditions led to the automatic revocation of the conditional release. However, in the present cases, the revocation of the suspension depended on the finding, by a court of law, of guilt for an offence which resulted in a prison sentence. While Mr Ardic could not change the fact that he had left the country, the appellants in the present cases could influence the finding of guilt and the sentence by being present at the trials for the Trigger Offences.
(
42
)	The two appellants in the main proceedings claimed that the activation of the custodial sentence for the First Offence(s) flows directly from the second conviction, and that the two are therefore so closely connected that the second conviction must be taken into account when deciding on the execution of the EAW. Similarly, the referring court is of the view that there is a close nexus between the two trials, which might warrant characterising the second one as the trial resulting in the decision. I agree with those arguments.
(
43
)	That is clearly illustrated by the situation in Case C‑514/21, in which the first instance court, after the finding of guilt for the Trigger Offences, imposed only a fine as a sentence, whereas the appellate court changed that sentence into a prison sentence.
(
44
)	According to the available information, the revocation of suspension proceedings in Case C‑515/21 was separate, but did not leave any discretion to the deciding judge.
(
45
)	Judgment of 22 December 2017, Ardic (C‑571/17 PPU, EU:C:2017:1026, paragraph 87). See, also, Opinion of Advocate General Richard de la Tour in Puig Gordi and Others (C‑158/21, EU:C:2022:573, point 12).
(
46
)	Article 1(2) of the EAW Framework Decision.
(
47
)	See, in that respect, recital 4 of Framework Decision 2009/299, stating, inter alia, that ‘this Framework Decision is aimed at refining the definition of such common grounds allowing the executing authority to execute the decision despite the absence of the person at the trial, while fully respecting the person’s right of defence. …’
(
48
)	Recital 4 of Framework Decision 2009/299.
(
49
)	See recitals 3 and 5 of Framework Decision 2009/299.
(
50
)	See recital 1 of Framework Decision 2009/299.
(
51
)	Judgment of 24 May 2016, Dworzecki (C‑108/16 PPU, EU:C:2016:346, paragraph 42).
(
52
)	The same conditions seem to be repeated in Directive 2016/343. See, in particular, Article 8(2) and Article 9 thereof.
(
53
)	For example, concerning the requirement that the person actually received official information of the scheduled trial under Article 4a(1)(a) of the EAW Framework Decision (see footnote 58 below). See, also, Brodersen, K.H., Glerum, V. and Klip, A., ‘The European arrest warrant and in absentia judgments: The cause of much trouble’, New Journal of European Criminal Law, Vol. 13(1), pp. 7-27, at pp. 12 and 21; Klip, A., Brodersen, K.H. and Glerum, V., The European Arrest Warrant and In Absentia Judgments, Maastricht Law Series, No 12, Eleven International Publishing, The Hague, 2020, p. 110.
(
54
)	See judgments of 17 December 2020, Generalstaatsanwaltschaft Hamburg (C‑416/20 PPU, EU:C:2020:1042, paragraphs 43 and 44), and of 19 May 2022, Spetsializirana prokuratura (Trial of an absconded accused person) (C‑569/20, EU:C:2022:401, paragraphs 34, 35 and 37).
(
55
)	In that respect, the present cases incidentally raise another issue: when should the executing authority be satisfied that one of the conditions in Article 4a(1) of the EAW Framework Decision has been met? The communication between the executing and the issuing authorities is based on the form annexed to the EAW Framework Decision, which, as it has predesigned boxes to check, does not seem entirely satisfactory for meaningful communication. In the present cases, multiple exchanges of information took place between the executing and the issuing authorities based on Article 15 of the EAW Framework Decision. Still, that did not seem sufficient from the point of view of the referring court to decide with certainty whether the right to be present at the trial was breached. For example, in Case C‑515/21, the issuing authority explained that there exists a possibility for an extraordinary remedy to reopen the trials for the Trigger Offences. However, it does not seem that the executing authority was satisfied that the requirement set out in Article 4a(1)(d) of the EAW Framework Decision had been met.
(
56
)	See Opinion of Advocate General Bot in Melloni (C‑399/11, EU:C:2012:600, points 80 to 82).
(
57
)	See footnote 53 above.
(
58
)	An example may be found in the case that led to the judgment of 24 May 2016, Dworzecki (C‑108/16 PPU, EU:C:2016:346). Poland issued an EAW seeking the surrender of Mr Dworzecki; although the trial had been held in absentia, the Polish issuing authority stated that Mr Dworzecki had received official information of the scheduled trial because that information had been delivered to an adult resident of his household at the address he had provided. Although considered due service under Polish law, that did not meet the condition under Article 4a(1)(a) of the EAW Framework Decision, which requires that the summons be received ‘in person’. The Court found that the executing judicial authority in that case may nevertheless proceed with the surrender by taking into account other circumstances that would satisfy that judicial authority as to the fact that Mr Dworzecki’s rights of defence would not be breached (see paragraphs 47 to 52 of that judgment). An intention to escape trial has been found by the ECtHR as a justified reason for not granting a retrial for a decision rendered in absentia. See, for example, ECtHR, 14 June 2001, Medenica v. Switzerland (CE:ECHR:2001:0614JUD002049192, §§ 55 and 56).
(
59
)	See, in that respect, judgments of 24 May 2016, Dworzecki (C‑108/16 PPU, EU:C:2016:346, paragraph 50), and of 17 December 2020, Generalstaatsanwaltschaft Hamburg (C‑416/20 PPU, EU:C:2020:1042, paragraph 51).
(
60
)	Except in the situations covered by Article 5 of the EAW Framework Decision, neither of which apply to the two cases at hand: first, the situation of a crime punishable by a custodial life sentence or lifetime detention order, and, second, when the EAW is issued for the purposes of prosecution.
(
61
)	Judgment of 22 December 2017, Ardic (C‑571/17 PPU, EU:C:2017:1026, paragraph 70).
(
62
)	See footnote 7 above.
(
63
)	This is the language of the ECtHR. See, for example, ECtHR, 9 July 2019, Kislov v. Russia, (CE:ECHR:2019:0709JUD000359810, §§ 107 and 115).
(
64
)	Judgment of 5 April 2016, Aranyosi and Căldăraru (C‑404/15 and C‑659/15 PPU, EU:C:2016:198, paragraph 88).
(
65
)	That right is protected as absolute under Article 3 ECHR and Article 4 of the Charter.
(
66
)	Judgment of 25 July 2018, Minister for Justice and Equality (Deficiencies in the system of justice) (C‑216/18 PPU, EU:C:2018:586, paragraphs 61, 68, 76 and 78).
(
67
)	Judgments of 17 December 2020, Openbaar Ministerie (Independence of the issuing judicial authority) (C‑354/20 PPU and C‑412/20 PPU, EU:C:2020:1033, paragraph 52), and of 22 February 2022, Openbaar Ministerie (Tribunal established by law in the issuing Member State) (C‑562/21 PPU and C‑563/21 PPU, EU:C:2022:100, paragraph 52).
(
68
)	Judgment of 5 April 2016, Aranyosi and Căldăraru (C‑404/15 and C‑659/15 PPU, EU:C:2016:198, paragraph 89).
(
69
)	Judgment of 25 July 2018, Minister for Justice and Equality (Deficiencies in the system of justice) (C‑216/18 PPU, EU:C:2018:586, paragraphs 61 and 68).
(
70
)	That was also confirmed in judgments of 17 December 2020, Openbaar Ministerie (Independence of the issuing judicial authority) (C‑354/20 PPU and C‑412/20 PPU, EU:C:2020:1033, paragraphs 54 and 66), and of 22 February 2022, Openbaar Ministerie (Tribunal established by law in the issuing Member State) (C‑562/21 PPU and C‑563/21 PPU, EU:C:2022:100, paragraphs 50 and 52).
(
71
)	See footnote 8 above.
(
72
)	See, in that respect, Framework Decision 2009/299 and Directive 2016/343.
(
73
)	In that respect, see judgment of 17 December 2020, Generalstaatsanwaltschaft Hamburg (C‑416/20 PPU, EU:C:2020:1042, paragraph 55). For a different opinion, see Böse, M., ‘European Arrest Warrants and Minimum Standards for Trials in absentia – Blind Trust vs. Transnational Direct Effect?’, European Criminal Law Review, Vol. 11(3), 2021, pp. 275-287, at pp. 285-286. Böse suggests that the refusal is also allowed ‘if there is a manifest lack of judicial protection in the issuing Member State that deprives the defendant of his right to an effective legal remedy’ and that the person subject to the EAW should be able to rely on Directive 2016/343 in surrender proceedings too.
(
74
)	See, in that respect, Opinion of Advocate General Bobek in Ardic (C‑571/17 PPU, EU:C:2017:1013, point 78), in which he explained that the EAW Framework Decision recognises the leading role of the issuing Member State with regard to safeguarding the rights of accused persons.
(
75
)	See, also, Opinion of Advocate General Richard de la Tour in Puig Gordi and Others (C‑158/21, EU:C:2022:573, points 85, 87 and 116).