OPINION OF ADVOCATE GENERAL
BOBEK
delivered on 26 July 2017 ( 1 )
Case C‑270/17 PPU
Openbaar Ministerie
v
Tadas Tupikas
(Request for a preliminary rulingfrom the Rechtbank Amsterdam (District Court, Amsterdam, Netherlands))
(Reference for a preliminary ruling — European arrest warrant — Grounds for optional non-execution — Warrant issued for the purpose of executing a custodial sentence or a detention order — ‘Trial resulting in the decision’ — Appeal proceedings)
I. Introduction
1.
Mr Tadas Tupikas, a Lithuanian national, is the subject of a European arrest warrant (‘EAW’) issued by the Lithuanian judicial authority. That authority seeks the surrender of Mr Tupikas, currently detained in the Netherlands, for the purpose of executing a custodial sentence of one year and four months.
2.
That sentence was imposed by a court of first instance in Lithuania before which Mr Tupikas appeared in person. Mr Tupikas appealed against the judgment. The information provided in the EAW does not make it possible to establish whether he appeared in person at the proceedings at second instance. The appeal was dismissed.
3.
The EAW is based on the judgment delivered at first instance. It states that the person in question appeared in person at the trial which resulted in the decision.
4.
Under the national law transposing 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 (‘the Framework Decision’), ( 2 ) the competent Netherlands authority must refuse to execute an EAW if the person in question did not appear in person at the trial resulting in the decision, ( 3 ) unless one of the situations listed in the applicable national provision arises.
5.
Lacking information concerning whether Mr Tupikas appeared at the appeal proceedings, the referring court asks whether the abovementioned concept of ‘trial resulting in the decision’ also refers to appeal proceedings that resulted in an examination of the merits of the case and confirmed the sentence imposed at first instance which the EAW is intended to execute.
6.
By that question the referring court seeks to ascertain whether it is necessary to assess whether the rights of defence of the person concerned have been respected in relation to the criminal proceedings at first instance and on appeal or whether it is sufficient for that court to satisfy itself that those rights were respected at first instance.
II. Legal context
A. The ECHR
7.
Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms ( 4 ) (‘the ECHR’) provides:
‘In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ...’
B. EU law
1. The Charter
8.
Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’) provides:
‘Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.
Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented.
…’
9.
Under Article 48(2) of the Charter ‘respect for the rights of the defence of anyone who has been charged shall be guaranteed’.
2. The Framework Decision
10.
Article 1(1) of the Framework Decision defines the EAW as 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’.
11.
Article 1(2) provides that ‘Member States shall execute any [EAW] on the basis of the principle of mutual recognition and in accordance with the provisions of this Framework Decision’.
12.
Article 1(3) provides that the Framework Decision ‘shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 [TEU]’.
13.
Article 4a of the Framework Decision was introduced by Framework Decision 2009/299, for the purpose of establishing the optional grounds for refusing to execute an EAW when the person concerned did not appear in person at his trial:
‘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.
2. In case the European arrest warrant is issued … under the conditions of paragraph 1(d) and the person concerned has not previously received any official information about the existence of the criminal proceedings against him or her, he or she may, when being informed about the content of the European arrest warrant, request to receive a copy of the judgment before being surrendered. … it shall neither be regarded as a formal service of the judgment nor actuate any time limits applicable for requesting a retrial or appeal.
3. In case a person is surrendered under the conditions of paragraph (1)(d) and he or she has requested a retrial or appeal, the detention of that person awaiting such retrial or appeal shall, until these proceedings are finalised, be reviewed in accordance with the law of the issuing Member State, either on a regular basis or upon request of the person concerned. ...’
14.
Article 8(1) of the Framework Decision provides that the EAW must contain the following information:
‘…
(c)
evidence of an enforceable judgment, an arrest warrant or any other enforceable judicial decision having the same effect, coming within the scope of Articles 1 and 2;
(d)
the nature and legal classification of the offence …
…
(f)
the penalty imposed, if there is a final judgment, or the prescribed scale of penalties for the offence under the law of the issuing Member State;
…’
15.
Article 15 of the Framework Decision, headed ‘Surrender decision’ is worded as follows:
‘1. The executing judicial authority shall decide, within the time limits and under the conditions defined in this Framework Decision, whether the person is to be surrendered.
2. If the executing judicial authority finds the information communicated by the issuing Member State to be insufficient to allow it to decide on surrender, it shall request that the necessary supplementary information … be furnished as a matter of urgency …
…’
16.
Paragraph (d) of the Annex (‘European arrest warrant) to the Framework Decision is worded (after amendment by Framework Decision 2009/299) as follows:
C. Netherlands law
17.
The Overleveringswet (Law on surrender) of 29 April 2004 (Stb. 2004, No 195, ‘the OLW’) transposes the Framework Decision into Netherlands law. Article 12 provides that ‘surrender will not be allowed if the European arrest warrant was issued for the purpose of enforcing a sentence if the suspect did not appear in person at the court hearing resulting in the judgment, unless the European arrest warrant states, in accordance with the procedural requirements of the issuing Member State’, that one of the four situations described in that provision has arisen. Those situations are described in Article 12(a) to (d) of the OLW and correspond to Article 4a(1)(a) to (d) of the Framework Decision.
18.
Point D of Annex 2 to the OLW, entitled ‘Template for the European arrest warrant referred to in Article 2(2) of the OLW’, corresponds to point (d) of the Annex to the Framework Decision.
III. The facts, the main proceedings and the questions referred for a preliminary ruling
19.
On 22 February 2017, an application for the execution of an EAW issued on 14 February 2017 by the Klaipėdos apygardos teismas (Regional Court, Klaipėda, Lithuania) was made before the referring court by the officer van justitie bij de Rechtbank (Public Prosecutor’s Office, Netherlands).
20.
That EAW seeks the arrest and surrender of Mr Tupikas, a Lithuanian national, for the purpose of carrying out in Lithuania a sentence of imprisonment of one year and four months.
21.
The EAW mentions the existence of an enforceable judgment pronounced by the Klaipėdos apylinkės teismas (District Court, Klaipėda, Lithuania) on 26 August 2016 and relating to two offences. It states that Mr Tupikas appealed against that judgment and that, by decision of 8 December 2016, the Klaipėdos apygardos teismas (Regional Court, Klaipėda) dismissed the appeal.
22.
Mr Tupikas appeared in person at the trial at first instance.
23.
The EAW does not contain any information concerning the appeal proceedings, in particular as regards the issue whether the requested person appeared at those proceedings and, if not, whether the requirements of one of subparagraphs (a) to (d) of Article 4a(1) of the Framework Decision have been complied with.
24.
The national court asks whether, in such a case, the Framework Decision applies only to proceedings at first instance or also to appeal proceedings.
25.
It was in those circumstances that the Rechtbank Amsterdam (District Court, Amsterdam, Netherlands) decided to stay the proceedings and to refer the following question to the Court for a preliminary ruling:
‘Are appeal proceedings
–
in which there has been an examination of the merits of the case and
–
which resulted in the passing of a (new) sentence on the person concerned and/or the confirmation of the sentence handed down at first instance,
–
where EAW concerns the execution of that sentence,
the “trial resulting in the decision” as referred to in Article 4a(1) of [the] Framework Decision …?’
IV. The urgent procedure before the Court of Justice
26.
The referring court has requested that the present reference for a preliminary ruling be dealt with under the urgent procedure provided for in Article 107 of the Rules of Procedure of the Court.
27.
In support of that request, it argued that the question referred concerns the interpretation of the Framework Decision, which comes within Title V of Part Three of the FEU Treaty. It also observed that the person concerned was in custody in the Netherlands pending a decision on the action to be taken concerning his surrender. The Court’s urgent answer will have a direct and decisive impact on the length of detention of the person concerned.
28.
The Fifth Chamber of the Court decided on 8 June 2017 to grant that request.
29.
Written observations were lodged by Openbaar Ministerie (the Public Prosecutor, Netherlands), the applicant in the main proceedings, Mr Tupikas, the defendant in the main proceedings, the Netherlands Government and the European Commission. The Public Prosecutor, Mr Tupikas, the Netherlands, Irish and Lithuanian Governments and the Commission presented their oral arguments at the hearing held on 11 July 2017.
V. Analysis
30.
This analysis will be structured as follows. As a preliminary point, I shall clarify the specific subject matter of the present case (A). I shall then analyse the question referred for a preliminary ruling as it has been expressly raised (B). By applying the results of that analysis to the present case, I shall also examine the nature of the optional ground for refusal, resulting from Article 4a of the Framework Decision, which was made obligatory by the national implementing legislation (C).
A. Preliminary observations
31.
The right to an effective remedy and the rights of the defence and to a fair trial are enshrined, respectively, in Article 47 and Article 48(2) of the Charter.
32.
In accordance with the explanations relating to the Charter, those provisions have the same meaning and the same scope as Article 6 of the ECHR, which guarantees the effective exercise of the rights of the defence. That does not prevent EU law from affording wider protection under Article 52(3) of the Charter. ( 5 )
33.
In other words, there must be a minimum level of parallelism between the standards of protection provided for by the ECHR, on the one hand, and those existing in EU law, on the other hand. In this case, that concern is clear in particular from the preamble ( 6 ) and Article 1(3) of the Framework Decision ( 7 ) and the preamble ( 8 ) and Article 1(2) of Framework Decision 2009/299.
34.
As the first recital of Framework Decision 2009/299 points out, the right to a fair trial includes the right of an accused person to appear in person. ( 9 ) However, that right is not absolute and ‘under certain conditions the accused person may, of his or her own free will, expressly or tacitly but unequivocally,
