OPINION OF ADVOCATE GENERAL

TANCHEV

delivered on 10 December 2020 ( 1 )

Case C‑416/20 PPU

TR

joined parties:

Generalstaatsanwaltschaft Hamburg

(Request for a preliminary ruling from the Hanseatisches Oberlandesgericht Hamburg (Germany))

(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 — Article 4a — Optional grounds for non-execution — Directive (EU) 2016/343 — Articles 8 and 9 — Right to be present at the trial in criminal proceedings — Escape of the person being prosecuted)

1. This reference for a preliminary ruling concerns execution of two European arrest warrants, and the respective roles of the issuing Member State’s courts (here the Romanian courts) and the executing Member State’s courts (here the German courts) in policing the issuing Member State’s compliance with 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. ( 2 ) It raises the question whether the judicial authorities in the executing Member State are bound to decline to execute a European arrest warrant because of an infringement by the issuing Member State of the rights of the person concerned under Directive 2016/343.

2. The case concerns a Romanian citizen who has been convicted for various offenses committed in Romania. In this context, Romanian courts have issued three European arrest warrants with a view to securing his arrest and surrender by the German authorities for the purpose of executing, in Romania, the custodial sentences imposed on him by those convictions. The question referred to the Court relates to two of those three arrest warrants and concerns, more specifically, whether the lawfulness of the surrender of a detained person pursuant to the provisions of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, ( 3 ) as amended by Council Framework Decision 2009/299/JHA of 26 February 2009 ( 4 ) (‘Framework Decision 2002/584’) is dependent on the issuing Member State’s – in this case Romania’s – compliance with the provisions of Directive 2016/343 and particularly with Articles 8 and 9 of that directive.

3. I have reached the conclusion that the pertinent rules of European Union fundamental rights law do not require the referring court to refuse execution of the arrest warrants in issue in the main proceedings under the terms of Framework Decision 2002/584. This situation remains unchanged by Directive 2016/343.

I. Legal Framework

A. European Union law

1. Framework Decision 2002/584

4. Recitals 1, 5, 6 and 10 of Framework Decision 2002/584 are worded as follows: ‘(1) According to the Conclusions of the Tampere European Council of 15 and 16 October 1999, and in particular point 35 thereof, the formal extradition procedure should be abolished among the Member States in respect of persons who are fleeing from justice after having been finally sentenced and extradition procedures should be speeded up in respect of persons suspected of having committed an offence. … (5) ... The introduction of a new simplified system of surrender of sentenced or suspected persons for the purposes of execution or prosecution of criminal sentences makes it possible to remove the complexity and potential for delay inherent in the present extradition procedures. … (6) The European arrest warrant provided for in this Framework Decision is the first concrete measure in the field of criminal law implementing the principle of mutual recognition which the European Council referred to as the «cornerstone» of judicial cooperation. … (10) The mechanism of the European arrest warrant is based on a high level of confidence between Member States. Its implementation may be suspended only in the event of a serious and persistent breach by one of the Member States of the principles set out in Article 6(1) [EU], determined by the Council pursuant to Article 7(1) [EU] with the consequences set out in Article 7(2) [EU]. …’

5. Article 1 of Framework Decision 2002/584, entitled ‘Definition of the European arrest warrant and obligation to execute it’, provides: ‘1. The European arrest warrant is a judicial decision issued by a Member State with a view to the arrest and surrender by another Member State of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order. 2. Member States shall execute any European arrest warrant on the basis of the principle of mutual recognition and in accordance with the provisions of this Framework Decision. 3. 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 [EU].’

6. Article 3 of the Framework Decision sets out a number of ‘grounds for mandatory non-execution’ of a European arrest warrant. On the basis of the facts as presented by the referring court, none of these grounds are applicable to the present case. Article 4 of the Framework Decision sets out a number of ‘grounds for optional non-execution’ of a European arrest warrant. Similarly, these grounds are not applicable to the present case.

7. Prior to its amendment by Framework Decision 2009/299, Framework Decision 2002/584 contained a provision, namely Article 5(1), which stated that where a European arrest warrant had been issued for the purposes of executing a sentence or detention order imposed by a decision rendered in absentia, and where the person concerned had not been summoned in person or otherwise informed of the date and place of the hearing, his or her surrender may be subject to assurances by the issuing judicial authorities that the person could apply for a retrial in the issuing Member State where he or she could be present. Article 5(1) was deleted by Framework Decision 2009/299, which inserted a new Article 4a addressing the issue of decisions rendered in absentia.

8. Recital (1) to Framework Decision 2009/299 states: ‘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, [ ( 5 )] 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.’

9. Article 4a of Framework Decision 2002/584 with the heading ‘Decisions rendered following a trial at which the person did not appear in person’ provides: ‘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; …’

2. Directive 2016/343

10. Recitals 9, 33, 35, 44 and 47 of Directive 2016/343 state: ‘(9) The purpose of this Directive is to enhance the right to a fair trial in criminal proceedings by laying down common minimum rules concerning certain aspects of the presumption of innocence and the right to be present at the trial. … (33) The right to a fair trial is one of the basic principles in a democratic society. The right of suspects and accused persons to be present at the trial is based on that right and should be ensured throughout the Union. ... (35) The right of suspects and accused persons to be present at the trial is not absolute. Under certain conditions, suspects and accused persons should be able, expressly or tacitly, but unequivocally, to waive that right. … (44) The principle of effectiveness of Union law requires that Member States put in place adequate and effective remedies in the event of a breach of a right conferred upon individuals by Union law. An effective remedy, which is available in the event of a breach of any of the rights laid down in this Directive, should, as far as possible, have the effect of placing the suspects or accused persons in the same position in which they would have found themselves had the breach not occurred, with a view to protecting the right to a fair trial and the rights of the defence. … (47) This Directive upholds the fundamental rights and principles recognised by the Charter [of Fundamental Rights of the European Union, the “Charter”] and by the ECHR, including … the right to a fair trial, the presumption of innocence and the rights of the defence. Regard should be had, in particular, to Article 6 of the Treaty on European Union (TEU), according to which the Union recognises the rights, freedoms and principles set out in the Charter, and according to which fundamental rights, as guaranteed by the ECHR and as they result from the constitutional traditions common to the Member States, are to constitute general principles of Union law.’

11. Article 1 of Directive 2016/343, entitled ‘Subject matter’, provides: ‘This Directive lays down common minimum rules concerning: … (b) the right to be present at the trial in criminal proceedings.’

12. Article 8 of Directive 2016/343, entitled ‘Right to be present at the trial’, provides: ‘1. Member States shall ensure that suspects and accused persons have the right to be present at their trial. 2. Member States may provide that a trial which can result in a decision on the guilt or innocence of a suspect or accused person can be held in his or her absence, provided that: (a) the suspect or accused person has been informed, in due time, of the trial and of the consequences of non-appearance; or (b) the suspect or accused person, having been informed of the trial, is represented by a mandated lawyer, who was appointed either by the suspect or accused person or by the State. 3. A decision which has been taken in accordance with paragraph 2 may be enforced against the person concerned. 4. Where Member States provide for the possibility of holding trials in the absence of suspects or accused persons but it is not possible to comply with the conditions laid down in paragraph 2 of this Article because a suspect or accused person cannot be located despite reasonable efforts having been made, Member States may provide that a decision can nevertheless be taken and enforced. In that case, Member States shall ensure that when suspects or accused persons are informed of the decision, in particular when they are apprehended, they are also informed of the possibility to challenge the decision and of the right to a new trial or to another legal remedy, in accordance with Article 9. …’

13. Article 9 of the directive with the heading ‘Right to a new trial’ is worded as follows: ‘Member States shall ensure that, where suspects or accused persons were not present at their trial and the conditions laid down in Article 8(2) were not met, they have the right to a new trial, or to another legal remedy, which allows a fresh determination of the merits of the case, including examination of new evidence, and which may lead to the original decision being reversed. In that regard, Member States shall ensure that those suspects and accused persons have the right to be present, to participate effectively, in accordance with procedures under national law, and to exercise the rights of the defence.’

14. Article 10 of the directive with the heading ‘Remedies’ provides: ‘1. Member States shall ensure that suspects and accused persons have an effective remedy if their rights under this Directive are breached. …’

B. German law

15. Paragraph 83 of the Gesetz über die internationale Rechtshilfe in Strafsachen (Law on International Mutual Assistance in Criminal Matters) (‘IRG’) in the version published on 27 June 1994, ( 6 ) as last amended by Article 4 of the Law of 10 December 2019, ( 7 ) which transposes Article 4a of Framework Decision 2002/584, provides in section (1)(3) that an extradition based on a European arrest warrant is not permissible when the convicted person did not appear in person at the trial that was the basis for the judgment. Under certain circumstances, which are listed in Paragraphs 83(2), (3) and (4) IRG, the extradition of a person who did not so appear at the trial is permitted by way of exception to the general rule set out in Paragraph 83(1)(3).

16. Paragraph 83 IRG is worded as follows: ‘… (2) The extradition is, as an exception from [Paragraph 83](1)(3), nevertheless permissible, when 1. The convicted person a) in due time aa) was summoned in person to the hearing, which led to the judgment or bb) by other means actually received official information of the scheduled date and place of the hearing, which led to the judgment, in such a manner that it was unequivocally established that the convicted person was aware of the scheduled hearing,and b) was informed that a decision may be handed down also in his or her absence, 2. The convicted person, with knowledge of the proceedings against him, in which counsel for the defendant participated, prevented a summons in person through absconding, or …’

II. Facts, procedure and the question referred

17. According to the order for reference, TR is a Romanian citizen who has been convicted in Romanian courts for various offenses committed in Romania. In this context, Romanian courts have issued three European arrest warrants for the purpose of executing custodial sentences imposed by three different judgments rendered by two distinct Romanian jurisdictions.

18. Two of these arrest warrants are relevant to the present case. In the cases relating to each of those two warrants, the Romanian authorities attempted unsuccessfully to serve TR with notice of the proceedings at the first instance. In both cases, attempts were made to summon him in person at his last known address in Romania. Official notices of the summons were left at TR’s address, whereby the summons according to Romanian law were treated as served after 10 days had passed.

19. Though not summoned in person, TR was aware of the proceedings at first instance and in each of the two cases chose, appointed and mandated a lawyer to defend him and was in each of the two cases in fact defended by his chosen counsel. TR was not, however, present in court and was convicted in absentia.

20. Appeals were filed in both cases. In at least one of those cases, the appeal was filed by the lawyer chosen and mandated by TR to defend him in the case at first instance. The circumstances surrounding the appeals are not entirely clear from the documents before the Court, but in either case, TR was represented by court-appointed counsel.

21. TR travelled to Germany in October 2018 and was for a short period from 29 October 2018 to 30 January 2019 registered officially as resident in Bad Nauheim in Hessen. According to a statement from his companion, he then lived first in Hessen and then from approximately May 2019 in Hamburg without being able to register his addresses ‘since he was wanted by the Romanian authorities for arson’ and thus a fugitive. The referring court has considered this statement to be reliable. ( 8 )

22. From the time of the cancellation of his registration at the address in Bad Nauheim and until his arrest, TR had no officially registered address. When he was arrested, he was carrying personal identity documents belonging to another person, which he claimed were those of his brother. He provided no reason for the possession of those identity documents and, according to information provided by the police, TR had frequently used the identity of another brother.

23. Based on these circumstances, the referring court concluded that TR had absconded from Romania and was hiding in Germany from the judgments that form the basis for the two European arrest warrants that are relevant to this case.

24. By decision of 28 May 2020, the referring court found that the conditions for extradition contained in Paragraph 83(2)(2) IRG were met in TR’s case. It considered that he, with knowledge of the trials on which the European arrest warrants were based, had fled to Germany and thereby prevented the service of summons on him in person. The referring court further considered, on the basis of the information provided by the Romanian authorities, that the accused person was represented by counsel of his choice in both proceedings at first instance and by counsel appointed by the appellate courts in both appeal proceedings. The referring court found that the extradition of TR pursuant to those two European arrest warrants was therefore permissible pursuant to the German law implementing Framework Decision 2002/584.

25. By decision of 24 June 2020, the referring court granted TR’s request for a reconsideration of the decision of 28 May 2020. TR’s counsel argued that the extradition of TR in the absence of a guarantee that TR would be granted a reopening of the proceedings would be unlawful pursuant to Articles 8 and 9 of Directive 2016/343, and questioned the compatibility of Paragraph 83(2)(2) IRG with Directive 2016/343.

26. The referring court is now tasked with determining whether its decision of 28 May 2020 should stand, or whether the extradition of TR should be declared unlawful.

27. In those circumstances, the Hanseatisches Oberlandesgericht Hamburg (Higher Regional Court, Hamburg) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling: ‘In the case of decisions on the extradition for the purposes of criminal prosecution of a person convicted in absentia from a Member State of the European Union to another Member State, are the provisions of Directive 2016/343, in particular Articles 8 and 9 thereof, to be interpreted as meaning that the legality of the extradition (in particular in a so-called case of absconding) depends on the fulfilment by the requesting State of the conditions laid down in the Directive?’ ( 9 )

28. On 23 September 2020, the Court decided to deal with the reference for a preliminary ruling under the urgent procedure, pursuant to Article 107(1) of the Rules of Procedure of the Court of Justice.

29. The Court also decided to invite Romania to provide in writing all relevant information concerning the present case, in accordance with Article 109(3) of the Rules of Procedure.

30. Written observations on the question referred for a preliminary ruling were submitted by the Generalstaatsanwaltschaft Hamburg, Romania and the Commission. TR, the Federal Republic of Germany and the Republic of Poland presented oral argument at the hearing on 19 November 2020.

III. Analysis

A. Preliminary remarks

31. Although the question as phrased by the referring court seeks an interpretation of Directive 2016/343, what the referring court is really asking is whether the provisions of Directive 2016/343, and more specifically so its Articles 8 and 9, have an impact on the operation of the optional grounds for non-execution contained in Article 4a of Framework Decision 2002/584. For that reason, I consider it useful first to address the Framework Decision and in particular Article 4a thereof and the circumstances in which the Court has recognised a duty for the executing judicial authority to ‘bring the surrender proceedings to an end’ before turning to an analysis of the Directive 2016/343 and finally the interplay between the two.

B. The Framework Decision

1. General remarks

32. As the Court has consistently held, the principle of mutual trust between the Member States and the principle of mutual recognition are, in EU law, of fundamental importance given that they allow an area without internal borders to be created and maintained. More specifically, the principle of mutual trust requires, particularly with regard to the area of freedom, security and justice, each of those States, save in exceptional circumstances, to consider all the other Member States to be complying with EU law and particularly with the fundamental rights recognised by EU law. ( 10 )

33. Thus, the Court has held that the principle of mutual recognition, which is the ‘cornerstone’ of judicial cooperation, means that, pursuant to Article 1(2) of Framework Decision 2002/584, Member States are in principle obliged to give effect to a European arrest warrant. The executing judicial authority may refuse to execute such a warrant only in exceptional cases, exhaustively listed, of obligatory non-execution, laid down in Article 3 of the Framework Decision, or of optional non-execution, laid down in Articles 4 and 4a of the Framework Decision. Moreover, the execution of the European arrest warrant may be made subject only to one of the conditions exhaustively laid down in Article 5 of the Framework Decision. ( 11 )

2. Explicit grounds for non-execution pursuant to the provisions of Framework Decision 2002/584

34. As mentioned in point 33 of the present Opinion, Framework Decision 2002/584 contains three provisions concerning ‘grounds for non-execution’ of a European arrest warrant. None of the Article 3 mandatory grounds for non-execution or Article 4 optional grounds for non-execution are applicable in the present case. The pertinent provision in these proceedings is Article 4a of the Framework Decision, which contains grounds for ‘optional non-execution’ of a European arrest warrant. Article 4a provides with respect to European arrest warrants issued for the purpose of executing a custodial sentence or a detention order that the executing judicial authority ‘may’ refuse to execute a European arrest warrant if the person in question did not appear in person at the trial resulting in the decision, unless one of several exceptions apply. Pursuant to these exceptions, if any of the four conditions listed in Article 4a(1)(a)-(d) are satisfied, execution of the surrender is mandatory. This change in law from the legal regime in place under the previous EU measure in force ( 12 ) was intended to facilitate the surrender. ( 13 ) It also removed the task of deciding on the ‘adequacy’ of an assurance given by the issuing judicial authority from the executing judicial authority. Article 4a of Framework Decision 2002/584 does therefore not impose any obligation on the executing judicial authority to abstain from surrendering a person where he or she did not appear in person at their trial. It only permits the executing judicial authority to do so, and then only if the exceptions to the Article 4a grounds for optional non-execution do not apply. If the criteria for one or more of those exceptions are met, the executing judicial authority is obliged to surrender the person in question, even if he or she did not appear in person at their trial.

3. The execution of the two European arrest warrants is permissible under the provisions of Framework Decision 2002/584

35. According to the information provided by the referring court, TR was represented by counsel of his choice and mandated by him in both proceedings at first instance. Those proceedings appear thus to meet the conditions contained in Article 4a(1)(b) of Framework Decision 2002/584, and if those proceedings were the only ones relevant, execution of the two European arrest warrants would have been mandatory.

36. However, both of the cases were appealed. It is not clear from the documents before the Court whether the appeal procedures in those two Romanian cases would qualify as a ‘trial resulting in the decision’ within the meaning of Article 4a(1) of Framework Decision 2002/584, as interpreted by the Court in its jurisprudence in Tupikas ( 14 ) and thus were the ‘judicial decision[s] finally disposing of the case[s] on the merits’ ( 15 ) within the meaning of that jurisprudence. If the appeals cases are the ‘trials resulting in the decisions’, as interpreted by the Court, then those are the trials that must meet the conditions contained in Article 4a(1)(a)-(d) in order for the execution of the European arrest warrants to be mandatory. If the appeals cases are not the ‘trials resulting in the decisions’ – which could be the case for appeals purely on matters of law – then it would appear that the execution of the European arrest warrants would be mandatory. It is not clear from the order for reference whether the information provided by the Romanian issuing judicial authorities would permit that determination.

37. However, as the case is presented by the referring court to the Court, the referring court is faced with a situation where the surrender of TR – in the referring court’s view and further to its evaluation of the factual circumstances and on consideration of the information contained in the European arrest warrants and the responses from the Romanian authorities to its inquiries – is optional pursuant to Article 4a of Framework Decision 2002/584 and that surrender is permissible under national law. The referring court also is of the view that, based on its evaluation of those same facts, TR is liable to face a breach of his rights under Directive 2016/343 if he is not granted a retrial in the issuing Member State (Romania), which the issuing (Romanian) judicial authorities have declined to guarantee, and it thus asks whether it is required to set aside the national provisions mandating the execution of the European arrest warrants in order to deny the optional ( 16 ) surrender of TR in a case where it believes that his rights under Directive 2016/343 are liable to be breached.

4. The Court’s judgment in Melloni

38. The Court has already had occasion to interpret the compatibility of Article 4a(1) of Framework Decision 2002/584 with the requirements of Articles 47 and 48(2) of the Charter in the context of an exception to the optional surrender rule for in absentia convictions. In the case that gave rise to the judgment in Melloni, ( 17 ) the person convicted was represented at both first instance and on appeal by counsel chosen and mandated by him. His surrender by the executing (Spanish) judicial authorities to the issuing Member State (Italy) was therefore mandatory, not optional, pursuant to the provisions of Framework Decision 2002/584.

39. Although the operative part of the Court’s judgment in Melloni is phrased as if it covered any surrender pursuant to Article 4a(1), ( 18 ) the judgment must be understood as concerning only those cases – unlike the present case – where surrender is mandatory, and not optional, that is to say, cases where one or more of the exceptions in Article 4a(1)(a)-(d) apply. The judgment cannot be understood to cover any optional surrender that the executing Member State may allow pursuant to its discretion where the requirements of the Article 4a(1)(a)-(d) exceptions are not met. That is also quite clear from the Court’s detailed analysis in paragraphs 47 to 54 of that judgment.

40. Were the referring court to find that one of the exceptions in Article 4a(1)(a)-(d) applies, that is to say that the procedures underlying the European arrest warrants complied with the procedural safeguards in any one of those exceptions, the ruling in Melloni that ‘Article 4a(1) is compatible with the requirements under Articles 47 and 48(2) of the Charter’ would be applicable. The conclusion would then be that TR’s fundamental right to a fair trial, including his right to be present at trial, had not been breached.

41. As discussed in points 36 and 37 of this Opinion, it is possible that one of the exceptions in Article 4a(1)(a) or (b) might apply (although this is by no means clear). As the referring court based its question on the premiss that execution of the European arrest warrants at issue is governed by the optional grounds for non-execution, I will proceed on that assumption.

5. Exceptional cases where the Court has accepted that the executing judicial authority may ‘bring the surrender procedure established by Framework Decision 2002/584 to an end’

42. The Court has, in a limited number of cases concerning breaches of fundamental rights of the persons concerned, acknowledged that, ‘subject to certain conditions, the executing judicial authority has the power to bring the surrender procedure established by Framework Decision 2002/584 to an end’. ( 19 )

43. The Court found a basis for this exceptional derogation from the rules of Framework Decision 2002/584 in Article 1(3) of the Framework Decision, which states that it ‘shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 [EU]’. The Court also recognised in its jurisprudence that the principles of mutual recognition and mutual trust can be limited in exceptional circumstances. ( 20 )

44. In contrast, the Court has pointed out that, as stated in recital 10 to Framework Decision 2002/584, the implementation of the mechanism of the European arrest warrant may only be suspended in the event of serious and persistent breach by one of the Member States of the principles referred to in Article 2 TEU, and in accordance with the procedure provided for in Article 7 TEU. ( 21 )

45. On this basis, the Court established certain standards for the review that the executing judicial authority must undertake when faced with a risk that the fundamental rights of the person concerned may be breached by the issuing Member State in the case of his or her surrender. In the context of a potential breach of the prohibition against inhuman or degrading treatment in Article 4 of the Charter by the issuing Member State, those standards require the executing judicial authority to investigate further where there is ‘objective, reliable, specific and properly updated evidence’ that demonstrates deficiencies and to then ‘determine, specifically and precisely, whether there are substantial grounds to believe’ that the person concerned will be exposed to a real risk of breach of this fundamental right. ( 22 ) If that is the case, then the executing judicial authority must ‘request supplementary information’ from the issuing judicial authority and postpone its decision on the surrender until it obtains ‘supplementary information that allows it to discount such a risk.’ If the risk cannot be discounted within a reasonable time, the executing judicial authority must decide ‘whether the surrender procedure should be brought to an end.’ ( 23 )

46. The determination concerning the risk of breach of a fundamental right must be made on an individual basis. In the context of a potential breach of the prohibition of inhuman or degrading treatment, the Court has held in Generalstaatsanwaltschaft that ‘only the conditions of detention in prisons in which … it is likely that [the person concerned] will be detained’ should be assessed for that purpose, and ‘solely the actual and precise conditions of detention of the person concerned that are relevant for determining whether that person will be exposed to a real risk of inhuman or degrading treatment’. ( 24 )

47. In the context of a potential breach of the right to a fair trial, the Court in Minister for Justice and Equality ( 25 ) essentially applied the same standard as in Aranyosi and Căldăraru ( 26 ) after finding, first, that a real risk of breach of the fundamental right to an independent tribunal, and therefore of the ‘essence of the fundamental right to a fair trial’ as guaranteed in Article 47(2) of the Charter, like a real risk of breach of Article 4 of the Charter, could permit the executing judicial authority to refrain, by way of exception, from giving effect to a European arrest warrant on the basis of Article 1(3) of Framework Decision 2002/584. ( 27 )

48. The common elements of that case-law are, thus, first the presence of external ‘evidence’ or ‘material’ – which must be ‘objective, reliable, specific and properly updated’ and which in the cases concerning Article 4 of the Charter consisted of judgments rendered by the ECtHR and in the case concerning Article 47(2) of the Charter was the Commission’s reasoned proposal ( 28 ) – which must demonstrate the ‘deficiencies’ that may give rise to a real risk of breach of the fundamental right in question, and second an individual determination that the person concerned may be subject to a real risk of breach of his or her fundamental right if surrendered, based on that person’s individual circumstances.

C. The content of the fundamental right to be present at trial, as guaranteed by Article 47(2) of the Charter and Article 6(1) ECHR

49. Article 47 of the Charter is entitled ‘Right to an effective remedy and to a fair trial’. It states in paragraph 2 that ‘everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law’. The Explanations relating to the Charter of Fundamental Rights ( 29 ) point out that the second paragraph of Article 47 of the Charter corresponds to Article 6(1) of the ECHR, relating to the right to a fair trial. ( 30 ) Article 52 of the Charter, entitled ‘Scope and interpretation of rights and principles’, provides in paragraph 3 that ‘in so far as this Charter contains rights which correspond to rights guaranteed by the [ECHR], the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection.’

50. The right to be present at trial forms part of the essence of the fundamental right to a fair trial. However, as the Court and the ECtHR have consistently held, an accused person can waive his or her right to be present at a hearing, either explicitly or implicitly through his or her conduct, ( 31 ) such as when the person seeks to evade the trial. As the ECtHR has stated, ‘a denial of justice … occurs where a person convicted in absentia is unable subsequently to obtain from a court which has heard him a fresh determination of the merits of the charge, in respect of both law and fact, where it has not been established that he has waived his right to appear and to defend himself … or that he intended to escape trial’. ( 32 )

51. The ECtHR stated further that if official notice was not served on the person convicted in absentia, the question arises as to whether he or she may be regarded as having been sufficiently aware of their prosecution and the trial to be able to decide to waive their right to appear in court, or to evade justice, and held that ‘certain established facts might provide an unequivocal indication that the accused is aware of the existence of the criminal proceedings against him [or her] and of the nature and the cause of the accusation and does not intend to take part in the trial or wishes to escape prosecution’. ( 33 )

52. This case-law from the ECtHR concerns, however, cases at first instance. As far as appeals cases are concerned, the protection of the right to be present at trial is significantly more limited. Notably, the case-law of the ECtHR distinguishes situations where the appeal proceedings involve only questions of law from cases where the appellate court may examine both the facts and the law and make a full assessment of the issue of guilt or innocence. In the former case, the requirements of Article 6 ECHR may be complied with even if the appellant is not given the opportunity to be heard in person, provided that a public hearing was held at first instance. ( 34 ) In the latter case, and in particular where the appellate court is called upon to increase the sentence, the presence of the accused person is more likely to be indispensable. ( 35 )

53. The facts as described in the order for reference do not detail the nature of the appeal procedures in the cases concerning TR. It is therefore unclear by which standard his right to be present at those proceedings and the adequacy of the Romanian authorities’ efforts to serve him with summons in those appeal cases should be judged for the purposes of TR’s fundamental right to be present at the trial as guaranteed by Article 47(2) of the Charter and Article 6(1) of the ECHR.

54. However, the facts as presented in the order for reference clearly support the referring court’s conclusion that TR deliberately absconded from the trials, both with respect to the proceedings at first instance and on appeal, and evaded arrest. It would also appear that TR was aware of the proceedings against him and of the nature and cause of the accusations. Based on that conclusion, which it is for the referring court to draw, TR’s fundamental right to be present at trial as guaranteed by Article 47(2) of the Charter would not have been breached by reason of his conviction in absentia, confirmed on appeal, and by the subsequent rejection of the issuing Member State to guarantee him a retrial.

55. As no fundamental right would appear to have been breached on the facts as presented in the order for reference, the issue of whether the executing judicial authority may ‘bring the surrender procedures to an end’ in accordance with the Court’s case-law in Aranyosi and Căldăraru, Generalstaatsanwaltschaft and Minister for Justice and Equality does not come into play.

56. It remains, however, to be assessed whether the protection afforded by Directive 2016/343 in excess of that guaranteed by Article 47(2) of the Charter and by Article 6(1) ECHR limits the discretion of the executing Member State when implementing the grounds for optional non-execution in Article 4a of Framework Decision 2002/584.

D. The status of the additional safeguards of the right to be present at trial that are contained in Directive 2016/343

57. According to Recital 9 to Directive 2016/343, the purpose of the directive is to enhance the right to a fair trial by laying down common minimum rules concerning, inter alia, the right to be present at trial. By establishing common minimum rules on the protection of the procedural rights of suspects and accused persons, that directive aims to strengthen the trust of Member States in each other’s criminal justice systems and thus to facilitate the mutual recognition of decisions in criminal matters. ( 36 )

58. It follows clearly from the structure of Directive 2016/343 and the remedies it provides, that in as far as the right to be present at trial is concerned, it is addressed to the Member State where a trial is taking place or took place. Only that Member State can grant the remedy specified in Article 9: a retrial.

59. Conversely, Article 4a of Framework Decision 2002/584, logically, is addressed to Member States other than the one where the trial took place and where the person concerned was convicted. Only those Member States can surrender the person concerned to the Member State where he or she was convicted.

60. Not only do Framework Decision 2002/584 and Directive 2016/343 have different addressees, they also regulate different subject matters.

61. As pointed out by the referring court, the actual material scope of Directive 2016/343 is, as far as is relevant to this case, limited to minimum requirements for trials in absentia in the Member States. An extension of the scope of Directive 2016/343 to extradition or surrender procedures would require justification. Compliance with minimum rules applicable to national proceedings is not amenable to examination in extradition or surrender proceedings taking place in another Member State: such proceedings frequently take place under the inherent time pressure that the possible detention of the person concerned entails and within the natural limits on the executing judicial authority’s ability to review the compatibility of provisions of another legal system, frequently written in a foreign language, with the applicable standards of EU law. Such a review would exceed the scope of extradition proceedings and run counter to the principle of mutual recognition that is the cornerstone of judicial cooperation. Extradition law must thus necessarily remain limited to a selective examination.

62. As pointed out in the order for reference, an application of Directive 2016/343 limiting the discretion of the executing Member State when implementing Article 4a of Framework Decision 2002/584 is also unsupported by the genesis of the Directive. As the referring court mentions in the order for reference, it is clear from the minutes of the meeting of the Coordinating Committee in the area of police and judicial cooperation in criminal matters (see Council document 12955/14 of 9 September 2014, p. 2 et seq.), that the Commission spoke in favour of harmonising the requirements laid down in Directive 2016/343 and in extradition law in the form of Article 4a of Framework Decision 2002/584, because, notwithstanding the different regulatory areas of each set of rules, the aim was to set minimum requirements for national criminal proceedings in the EU territory and those rules were therefore intrinsically linked: ‘According to the Commission, the rules that apply in case of the absence of a person at his or her trial are intrinsically linked to the right of that person to be present at the trial. This right and the criteria to judge suspects or accused persons in their absence would be two sides of the same coin.’ (p. 3).

63. However, the Commission’s view did not prevail, as the representatives of the Member States referred to the different regulatory areas and aims and therefore unanimously rejected extension of the draft directive to extradition law: ‘It was reminded that the Framework Decision was concluded in another legal context (with unanimity voting) and that it had another aim than the present draft Directive (mutual recognition versus establishing minimum rules). Hence, it would not be desirable to transpose the text of the Framework Decision into the draft Directive.’ (p. 2).

64. It should be noted that the fundamental right to be present at the trial pursuant to Article 47(2) of the Charter and Article 6(1) ECHR, as delineated by the Court and the ECtHR, is significantly narrower in scope than the right to be present at trial pursuant to Article 8 of Directive 2016/343. It is only the risk of breach of the narrower fundamental right to be present at trial that may justify the executing judicial authority bringing the surrender proceedings to an end and not the additional scope of that right as provided for by the Directive.

65. Whereas a breach of the fundamental right to a fair trial, including a breach of the fundamental right to be present at trial as interpreted by the ECtHR, may justify ‘bringing an end to the surrender procedure’, in my view, a risk or even knowledge that another Member State may not be complying fully with every aspect of Directive 2016/343 does not, in itself, justify ending the surrender procedure. It should be recalled in this respect that the Court has held consistently that limitations on the principle of mutual trust must be interpreted strictly. ( 37 )

66. In a case where the executing Member State has discretion pursuant to Article 4a of Framework Decision 2002/584, I would argue that such known or possible lack of compliance with a directive by the issuing Member State also does not, as a matter of EU law, limit the executing Member State’s discretion to execute a European arrest warrant.

67. The remedy for the person concerned, if his or her right to be present at trial under Directive 2016/343 is breached in a way that does not also constitute a breach of the fundamental right to a fair trial, as enshrined in Article 47(2) of the Charter, is a retrial in the Member State where he or she was convicted in absentia. This is the remedy specified in Article 9 of Directive 2016/343.

68. That does not mean that the executing Member State could not take into account whether persons convicted in absentia are secured all rights to which they are entitled under Directive 2016/343 in the issuing Member State, if it so chose. It simply means that in the absence of the breach of a fundamental right protected by Directive 2016/343, such consideration is within the discretion of that Member State.

IV. Conclusion

69. In the light of all the above considerations, I am of the opinion that the Court should answer the question raised by the Hanseatisches Oberlandesgericht Hamburg as follows: In the absence of a real risk of a breach of the fundamental right to a fair trial, Articles 8 and 9 of 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 do not limit the discretion of the executing Member State in its implementation of rules concerning optional non-execution of a European arrest warrant pursuant to Article 4a of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, as amended by Council Framework Decision 2009/299/JHA of 26 February 2009.

( 1 ) Original language: English.

( 2 ) OJ 2016 L 65, p. 1.

( 3 ) OJ 2002 L 190, p. 1.

( 4 ) OJ 2009 L 81, p. 24.

( 5 ) The European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (the ‘ECHR’).

( 6 ) BGBl. I p. 1537.

( 7 ) BGBl. I p. 2128.

( 8 ) See point III(1)(a)(2)(a)(bb), second section, of the order for reference (‘nach vorläufiger Bewertung glaubhafte und belastbare Angaben’).

( 9 ) Although the referring court’s question is phrased as if concerning ‘extradition for the purposes of criminal prosecution’, it is evident from the order for reference that it concerns the surrender of the person in question for the purpose of executing a custodial sentence and whether such surrender would be lawful under the pertinent provisions of EU law. It would appear that the reference to ‘criminal prosecution’ (‘Strafverfolgung’) instead of ‘executing a custodial sentence’ (‘Strafvollstreckung’) is a clerical error.

( 10 ) Judgment of 5 April 2016, Aranyosi and Căldăraru (C‑404/15 and C‑659/15 PPU, EU:C:2016:198, paragraph 78 and the case-law cited).

( 11 ) Judgment in Aranyosi and Căldăraru (C‑404/15 and C‑659/15 PPU, EU:C:2016:198, paragraphs 79 and 80 and the case-law cited).

( 12 ) Namely Article 5(1) of Framework Decision 2002/584 before the amendment of Framework Decision 2002/584 by Framework Decision 2009/299.

( 13 ) See to that effect, recital 3 to Framework Decision 2009/299: ‘Solutions provided by these Framework Decisions are not satisfactory as regards cases where the person could not be informed of the proceedings. … Framework Decision 2002/584/JHA on the European arrest warrant and the surrender procedures between Member States … allows the executing authority to require the issuing authority to give an assurance deemed adequate to guarantee the person who is the subject of the European arrest warrant that he or she will have an opportunity to apply for a retrial of the case in the issuing Member State and to be present when the judgment is given. The adequacy of such an assurance is a matter to be decided by the executing authority, and it is therefore difficult to know exactly when execution may be refused’.

( 14 ) Judgment of 10 August 2017, Tupikas (C‑270/17 PPU, EU:C:2017:628, paragraph 81). According to the Court’s judgment in Tupikas, the ‘trial resulting in the decision’ in the context of proceedings which have taken place at several instances is the ‘instance which led to the last [decision], provided that the court at issue made a final ruling on the guilt of the person concerned … following an assessment, in fact and law, of the incriminating and exculpatory evidence …’.

( 15 ) Idem, paragraph 83.

( 16 ) Optional pursuant to Article 4a of Framework Decision 2002/584.

( 17 ) Judgment of 26 February 2013 (C‑399/11, EU:C:2013:107).

( 18 ) Point 2 of the operative part rules that ‘Article 4a(1) … is compatible with the requirements under Articles 47 and 48(2) of the Charter’.

( 19 ) Judgments of 5 April 2016, Aranyosi and Căldăraru (C‑404/15 and C‑659/15 PPU, EU:C:2016:198); of 25 July 2018, Minister for Justice and Equality (Deficiencies in the system of justice) (C‑216/18 PPU, EU:C:2018:586, paragraph 44) and of 25 July 2018, Generalstaatsanwaltschaft (Conditions of detention in Hungary) (C‑220/18 PPU, EU:C:2018:589, paragraph 57). See also Opinion of Advocate General Campos Sánchez-Bordona in Openbaar Ministerie (Independence of the issuing judicial authority) (C‑354/20 PPU and C‑412/20 PPU, EU:C:2020:925, points 39, 40 and 44).

( 20 ) See to that effect Opinion 2/13 (Accession of the European Union to the ECHR) of 18 December 2014 (EU:C:2014:2454, paragraph 191, and the case-law cited).

( 21 ) Judgments of 5 April 2016, Aranyosi and Căldăraru (C‑404/15 and C‑659/15 PPU, EU:C:2016:198, paragraph 81) and of 25 July 2018, Minister for Justice and Equality (Deficiencies in the system of justice) (C‑216/18 PPU, EU:C:2018:586, paragraph 70).

( 22 ) Judgments of 5 April 2016, Aranyosi and Căldăraru (C‑404/15 and C‑659/15 PPU, EU:C:2016:198, operative part, paragraph 104), concerning breach of Article 4 of the Charter due to inhuman or degrading treatment as a result of the conditions in Romanian and Hungarian detention facilities, and of 25 July 2018Generalstaatsanwaltschaft (Conditions of detention in Hungary) (C‑220/18 PPU, EU:C:2018:589, paragraphs 60 and 62).

( 23 ) Judgment of 5 April 2016, Aranyosi and Căldăraru (C‑404/15 and C‑659/15 PPU, EU:C:2016:198, operative part, paragraph 104).

( 24 ) Judgment of 25 July 2018, Generalstaatsanwaltschaft (Conditions of detention in Hungary) (C‑220/18 PPU, EU:C:2018:589, operative part, second and third subsections).

( 25 ) Judgment of 25 July 2018, Minister for Justice and Equality (Deficiencies in the system of justice) (C‑216/18 PPU, EU:C:2018:586).

( 26 ) The standard expressed in Minister for Justice and Equality requires ‘material that is objective, reliable, specific and properly updated’ whereas the standard expressed in Aranyosi and Căldăraru required ‘evidence’ meeting that standard. The indications of breach of a fundamental right in Aranyosi and Căldăraru were more conclusive than in Minister for Justice and Equality, since the former were judgments by the ECtHR concluding breach of Article 3 ECHR and the latter was a reasoned proposal by the Commission concluding breach of the independence of the judiciary in Poland.

( 27 ) See, the extensive analysis in paragraphs 47-59 of judgment of 25 July 2018, Minister for Justice and Equality (Deficiencies in the system of justice) (C‑216/18 PPU, EU:C:2018:586).

( 28 ) The Commission’s reasoned proposal of 20 December 2017 submitted in accordance with Article 7(1) of the Treaty on European Union regarding the rule of law in Poland (COM(2017) 835 final).

( 29 ) OJ 2007 C 303, p. 17.

( 30 ) See to that effect also 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 33) and point 48 in my Opinion in that case.

( 31 ) See judgments of 26 February 2013, Melloni (C‑399/11, EU:C:2013:107, paragraph 49) and of 13 February 2020, Spetsializirana prokuratura (C‑688/18, EU:C:2020:94, paragraph 37); ECtHR, 1 March 2006, Sejdovic v. Italy, CE:ECHR:2006:0301JUD005658100, § 86 (‘neither the letter nor the spirit of Article 6 of the Convention prevents a person from waiving of his own free will, either expressly or tacitly, the entitlement to the guarantees of a fair trial’); see also ECtHR, 30 November 2000, Kwiatkowska v. Italy, CE:ECHR:2000:1130DEC005286899, to same effect.

( 32 ) ECtHR, 1 March 2006, Sejdovic v. Italy, CE:ECHR:2006:0301JUD005658100, § 82 (emphasis added).

( 33 ) ECtHR, 1 March 2006, Sejdovic v. Italy, CE:ECHR:2006:0301JUD005658100, §§ 98 and 99. In ECtHR, 26 January 2017, Lena Atanasova v. Bulgaria, CE:ECHR:2017:0126JUD005200907, § 52, the ECtHR found that the accused person had waived her right to be present at trial, as guaranteed by Article 6(1) ECHR, in circumstances where the person had been properly informed of the existence of the criminal proceedings and the charges brought against her, she had confirmed the factual circumstances and declared herself ready to negotiate the terms of her conviction, and then subsequently left the address she had previously indicated to the authorities without communicating the change of address, and where the authorities had undertaken reasonable efforts to assure her presence at trial.

( 34 ) ECtHR, 22 February 1984, Sutter v. Switzerland, CE:ECHR:1984:0222JUD000820978, § 30.

( 35 ) ECtHR, 6 July 2004, Dondarini v. San Marino, CE:ECHR:2004:0706JUD005054599, § 27.

( 36 ) Recital 10 to Directive 2016/343.

( 37 ) See in this regard my Opinion in Minister for Justice and Equality (Deficiencies in the system of justice) (C‑216/18 PPU, EU:C:2018:517, point 73), and judgment of 26 April 2018, Donnellan (C‑34/17, EU:C:2018:282, paragraph 50 and the case-law cited).