Openbaar Ministerie v Sławomir Andrzej Zdziaszek.
Date: 2017-08-10
72


Secondly, as regards the criterion relating to urgency, it is necessary, in accordance with the settled case-law of the Court, to take into account the fact that the person concerned in the case in the main proceedings is currently deprived of his liberty and that the question as to whether he may continue to be held in custody depends on the outcome of the dispute in the main proceedings (see, in particular, judgment of 10 November 2016, Kovalkovas, C‑477/16 PPU, EU:C:2016:861, paragraph 21 and the case-law cited). Moreover, the situation of the person concerned must be assessed as it stood at the time when consideration was given to whether the reference should be dealt with under the urgent procedure (judgment of 24 May 2016, Dworzecki, C‑108/16 PPU, EU:C:2016:346, paragraph 22 and the case-law cited).
83


Secondly, it is necessary to determine whether a decision at a later stage of the proceedings amending one or more of the custodial sentences previously imposed, such as the cumulative sentence at issue in the case in the main proceedings, is covered by Article 4a(1) of the Framework Decision.
85


Next, such a decision modifies the quantum of the penalty or penalties imposed. It is therefore necessary to make a distinction between measures of that type and those relating to the methods of execution of a custodial sentence. It is moreover apparent from the case-law of the European Court of Human Rights that Article 6(1) of the ECHR does not apply to questions concerning the methods for executing a sentence, in particular those relating to provisional release (see, to that effect, ECtHR, 3 April 2012, Boulois v. Luxembourg, CE:ECHR:2012:0403JUD003757504, § 87).
87


In that regard, it is apparent from the case-law of the European Court of Human Rights that the guarantees laid down in Article 6 of the ECHR apply not only to the finding of guilt, but also to the determination of the sentence (see, to that effect, ECtHR, 28 November 2013, Dementyev v. Russia, CE:ECHR:2013:1128JUD004309505, § 23). Thus, compliance with the requirement of a fair trial entails the right of the person concerned to be present at the hearing because of the significant consequences which it may have on the quantum of the sentence to be imposed (see, to that effect, ECtHR, 21 September 1993, Kremzov v. Austria, CE:ECHR:1993:0921JUD001235086, § 67).
88


This is the case with respect to specific proceedings for the determination of an overall sentence where those proceedings are not a purely formal and arithmetic exercise but entail a margin of discretion in the determination of the level of the sentence, in particular, by taking account of the situation or personality of the person concerned, or of mitigating or aggravating circumstances (see ECtHR, 15 July 1982, Eckle v. Germany, CE:ECHR:1983:0621JUD000813078, § 77, and 28 November 2013, Dementyev v. Russia, CE:ECHR:2013:1128JUD004309505, § 25 and 26).
89


Furthermore, it is irrelevant in that regard whether the court concerned has jurisdiction to increase the sentence previously imposed (see, to that effect, ECtHR, 26 May 1988, Ekbatani v. Sweden, CE:ECHR:1988:0526JUD001056383, § 32, and 18 October 2006, Hermi v. Italy, CE:ECHR:2006:1018JUD001811402, § 65).
90


It follows that proceedings giving rise to a judgment handing down a cumulative sentence, such as that at issue in the main proceedings, leading to a new determination of the level of custodial sentences imposed previously, must be regarded as relevant for the application of Article 4a(1) of Framework Decision 2002/584, where they entail a margin of discretion for the competent authority within the meaning of paragraph 88 of the present judgment and give rise to a decision which finally determines the sentence.
96


In the light of all the foregoing, the answer to the first and third questions is that, in a situation such as that at issue in the main proceedings, the concept of a ‘trial resulting in the decision’, within the meaning of Article 4a(1) of Framework Decision 2002/584, must be interpreted as referring not only to the proceedings which gave rise to the decision on appeal, where that decision, after a fresh examination of the case on the merits, finally determined the guilt of the person concerned, but also to subsequent proceedings, such as those which led to the judgment handing down the cumulative sentence at issue here, at the end of which the decision that finally amended the level of the initial sentence was handed down, inasmuch as the authority which adopted the latter decision enjoyed a certain discretion in that regard.
105


That authority not only cannot tolerate a breach of fundamental rights but, as provided for in Article 15(2) of Framework Decision 2002/584, it must also ensure that the time limits laid down in Article 17 thereof for taking the decision on the European arrest warrant are complied with, with the result that it cannot be required to resort to that Article 15(2) again (see, to that effect judgment of 5 April 2016, Aranyosi and Căldăraru, C‑404/15 and C‑659/15 PPU, EU:C:2016:198, paragraph 97).
107


Accordingly, the Court has already held that the executing judicial authority may, even after it has found that those cases do not cover the situation of the person who is the subject of the European arrest warrant, take account of other circumstances that enable it to ensure that the surrender of the person concerned does not entail a breach of his rights of defence (see, to that effect, judgment of 24 May 2016, Dworzecki, C‑108/16 PPU, EU:C:2016:346, paragraphs 50 and 51).