Openbaar Ministerie v Tadas Tupikas.
Date: 2017-08-10
45


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 (see, inter alia, judgment of 24 May 2016, Dworzecki, C‑108/16 PPU, EU:C:2016:346, paragraph 22 and the case-law cited).
49


As a preliminary point, it should be borne in mind that, according to the Court’s settled case-law, Framework Decision 2002/584 is based on the principle of mutual recognition, which itself, as a ‘cornerstone’ of judicial cooperation, as is apparent from recital 6 of that Framework Decision, is based on the mutual trust between Member States with a view to achieving the objective set for the Union to become an area of freedom, security and justice (see, to that effect, judgment of 10 November 2016, Kovalkovas, C‑477/16 PPU, EU:C:2016:861, paragraphs 25 to 28 and the case-law cited).
50


To that end, Article 1(2) of the Framework Decision lays down the rule that Member States are required to execute any European arrest warrant on the basis of the principle of mutual recognition and in accordance with the provisions of that Framework Decision. Except in exceptional circumstances, the executing judicial authorities may therefore refuse to execute such a warrant only in the exhaustively listed cases of non-execution provided for by Framework Decision 2002/584 and the execution of the European Arrest Warrant may be made subject only to one of the conditions listed exhaustively therein. Accordingly, while the execution of the European arrest warrant constitutes the rule, the refusal to execute is intended to be an exception which must be interpreted strictly (see judgment of 29 June 2017, Popławski, C‑579/15, EU:C:2017:503, paragraph 19 and the case-law cited).
51


Thus, the Framework Decision explicitly states, on the one hand, the grounds for mandatory (Article 3) and optional (Articles 4 and 4a) non-execution of the European arrest warrant, as well as, on the other, the guarantees to be provided by the issuing Member State in particular cases (Article 5).
53


That provision was repealed by Framework Decision 2009/299 and replaced, in Framework Decision 2002/584, by a new Article 4a which restricts the possibility of refusing to execute the European arrest warrant by listing, in a precise and uniform manner, the conditions under which the recognition and enforcement of a decision rendered following a trial in which the person concerned did not appear in person may not be refused (see, to that effect, judgment of 26 February 2013, Melloni, C‑399/11, EU:C:2013:107, paragraph 41).
55


It follows that the executing judicial authority is obliged to execute a European arrest warrant, notwithstanding the absence of the person concerned at the trial resulting in the decision, where one of the situations referred to in Article 4a(1)(a), (b), (c) or (d) of that Framework Decision is verified.
58


As the Court has already held, Article 4a(1) of Framework Decision 2002/584 seeks to guarantee a high level of protection and to allow the executing judicial authority to surrender the person concerned despite that person’s failure to attend the trial which led to his conviction, while fully respecting his rights of defence (see judgment of 24 May 2016, Dworzecki, C‑108/16 PPU, EU:C:2016:346, paragraph 37).
59


In other words, the principles of mutual trust and recognition on which that Framework Decision is based must not in any way undermine the fundamental rights guaranteed to the persons concerned.
60


It must be borne in mind that, in accordance with the Court’s settled case-law, the rules of secondary legislation of the Union must be interpreted and applied in compliance with fundamental rights (see, inter alia, judgment of 16 February 2017, C. K. and Others, C‑578/16 PPU, EU:C:2017:127, paragraph 59), an integral part of which is respect for the rights of the defence, flowing from the right to a fair trial, enshrined in Articles 47 and 48 of the Charter and in Article 6 of the ECHR.
63


Consequently, Framework Decision 2002/584 must be interpreted in such a way as to ensure compliance with the requirements of respect for the fundamental rights of the persons concerned, without, however, calling into question the effectiveness of the system of judicial cooperation between the Member States of which the European Arrest Warrant, as provided for by the Union legislature, is one of the key elements.
65


In that regard, it should be noted, first of all, that, according to the Court’s settled case-law, it follows from the need for uniform application of EU law and from the principle of equality that the wording of a provision of EU law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an autonomous and uniform interpretation throughout the European Union, which must take into account the context of the provision and the objective pursued by the legislation in question (see judgment of 24 May 2016, Dworzecki, C‑108/16 PPU, EU:C:2016:346, paragraph 28 and the case-law cited).
67


In those circumstances, it must be held that that expression, which is the subject of the present question referred for a preliminary ruling, must be regarded as an autonomous concept of EU law and interpreted uniformly throughout the European Union, irrespective of classifications in the Member States.
68


That interpretation is also borne out by the origins of Framework Decision 2009/299. As is apparent from recitals 2 and 4 thereof, the EU legislature, having noted that the lack of uniform regulation of questions linked with decisions handed down following a trial in which the person concerned did not appear in person could, in particular, hamper judicial cooperation, considered it necessary to provide clear and common grounds for non-recognition of decisions rendered following a trial in which the person concerned had not appeared in person, but without regulating the forms and methods, including procedural requirements, which are a matter for the laws of the Member States, that are used to achieve the results specified in that framework decision (see judgment of 24 May 2016, Dworzecki, C‑108/16 PPU, EU:C:2016:346, paragraph 31).
74


It must therefore be held that the concept of ‘trial resulting in the decision’, within the meaning of Article 4a(1) of Framework Decision 2002/584, must be understood as referring to the proceeding that led to the judicial decision which finally sentenced the person whose surrender is sought in connection with the execution of a European Arrest Warrant.
76


Moreover, although the final sentencing decision may, in certain cases, be indissociable from the enforceable criminal decision, that aspect is still governed by the various national procedural rules, in particular where several decisions have been taken at the end of successive proceedings.
78


As is clear from the case-law of the European Court of Human Rights, the term ‘conviction’ within the meaning of the ECHR refers to both a finding of guilt after it has been established in accordance with the law that there has been an offence, and the imposition of a penalty or other measure involving deprivation of liberty (see, to that effect, ECtHR, 21 October 2013, Del Río Prada v. Spain, CE:ECHR:2013:1021JUD004275009, § 123, and the case-law cited).
79


Moreover, the European Court of Human Rights has held on several occasions that, where appeal proceedings are provided for, they must comply with the requirements flowing from Article 6 of the ECHR, in particular where the remedy available against the decision given at first instance is a full appeal, the second-instance court having jurisdiction to re-examine the case, by assessing the merits of the accusations in fact and in law, and thus to determine the guilt or innocence of the person concerned on the basis of the evidence presented (see, to that effect, judgments of the ECtHR of 26 May 1988, Ekbatani v. Sweden, CE:ECHR:1988:0526JUD001056383, § 24 and 32; 26 October 2000, Kudła v. Poland, CE:ECHR:1988:0526JUD001056383, § 122; 18 October 2006, Hermi v. Italy, CE:ECHR:2006:1018JUD001811402, § 64 and 65; 25 April 2013, Zahirović v. Croatia, CE:ECHR:2013:0425JUD005859011, § 56; and of 14 February 2017, Hokkeling v. Netherlands, CE:ECHR:2017:0214JUD003074912, § 56 and 58).
80


It is also clear from that case-law of the European Court of Human Rights that where two instances are provided for, the fact that the person concerned was actually able to exercise his rights of defence at first instance does not automatically lead to the conclusion that he necessarily enjoyed the guarantees laid down in Article 6 of the ECHR if the appeal proceedings took place in his absence (see, to that effect, judgment of 14 February 2017, Hokkeling v. Netherlands, CE:ECHR:2017:0214JUD003074912, § 57, 58 and 61).
81


Consequently, 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 Framework Decision 2002/584, the instance which led to the last of those decisions, provided that the court at issue made a final ruling on the guilt of the person concerned and imposed a penalty on him, such as a custodial sentence, following an assessment, in fact and in law, of the incriminating and exculpatory evidence, including, where appropriate, the taking account of the individual situation of the person concerned.
83


It is the judicial decision finally disposing of the case on the merits, in the sense that there are no further avenues of ordinary appeal available, which is decisive for the person concerned, since it directly affects his personal situation with regard to the finding of guilt and, where appropriate, the determination of the custodial sentence to be served.
89


Furthermore, as is apparent from paragraph 57 of the Opinion of the Advocate General, the reading of point (d) of the form setting out a uniform template for a European arrest warrant annexed to Framework Decision 2002/584 confirms that the information which must be provided by the issuing judicial authority in it relates only to the last procedural step during which the merits of the case were examined.
90


With regard, more specifically, to a case such as that at issue in the main proceedings, in which the trial took place at two successive instances, namely a first instance followed by appeal proceedings, it is the instance which led to the decision on appeal which is therefore solely relevant for the purposes of Article 4a(1) of Framework Decision 2002/584, provided that those proceedings led to the final decision which is no longer subject to an ordinary appeal and which, accordingly, finally disposes of the case on the merits.
92


As regards, more specifically, the executing judicial authority’s obligations, it must be borne in mind that the binding nature of the framework decisions entails, on the part of the authorities of the Member States, and in particular national courts, an obligation to interpret national law in conformity with those decisions (see judgments of 16 June 2005, Pupino, C‑105/03, EU:C:2005:386, paragraph 34, and of 29 June 2017, Popławski, C‑579/15, EU:C:2017:503, paragraph 31).
96


Moreover, since Article 4a of Framework Decision 2002/584 provides for an optional ground for non-execution of the European arrest warrant, and as the cases described in paragraph 1(a) to (d) of that Article were conceived as exceptions to that optional ground for non-recognition, 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 into account 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).
98


In the light of all of the foregoing, the answer to the question referred is that, where the issuing Member State has provided for a criminal procedure involving several degrees of jurisdiction which may thus give rise to successive judicial decisions, at least one of which has been handed down in absentia, the concept of ‘trial resulting in the decision’, within the meaning of Article 4a(1) of the Framework Decision, must be interpreted as relating only to the instance at the end of which the decision is handed down which finally rules on the guilt of the person concerned and imposes a penalty on him, such as a custodial sentence, following a re-examination, in fact and in law, of the merits of the case.