Case C‑399/11, Melloni

Court further defines scope of Article 53 of Charter


>> This request for a preliminary ruling concerned the  validity of Article 4a(1) of Council Framework Decision 2002/584. The referring Court also asked the Court to examine, if necessary, the issue of whether a Member State might refuse to execute a European arrest warrant on the basis of Article 53 of the Charter of Fundamental Rights of the European Union (‘the Charter’) on grounds of infringement of the fundamental rights of the person concerned guaranteed by the national constitution.

The second paragraph of Article 47 of the Charter provides:

‘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.’

Article 53 of the Charter states:

‘Nothing in this Charter shall be interpreted as restricting or adversely affecting human rights and fundamental freedoms as recognised, in their respective fields of application, by Union law and international law and by international agreements to which the [European] Union or all the Member States are party, including the [ECHR] and by the Member States’ constitutions.’

By order of 1 October 1996, the First Section of the Sala de lo Penal of the Audiencia Nacional (Criminal Division of the High Court in Spain) authorised the extradition to Italy of Mr Melloni, in order for him to be tried there in relation to the facts set out in arrest warrants Nos 554/1993 and 444/1993, issued on 13 May and 15 June 1993 respectively by the Tribunale di Ferrara (District Court, Ferrara) (Italy). After being released on bail of ESP 5 000 000, which he provided on 30 April 1996, Mr Melloni fled, so that he could not be surrendered to the Italian authorities.

Following Mr Melloni’s arrest by the Spanish police on 1 August 2008, the Juzgado Central de Instrucción (Central Investigating Court) No 6 (Spain), by order of 2 August 2008, resolved to refer the matter of European arrest warrant No 271/2004 to the First Section of the Sala de lo Penal of the Audiencia Nacional.

Mr Melloni opposed surrender to the Italian authorities, contending, first, that at the appeal stage he had appointed another lawyer, revoking the appointment of the two previous lawyers, despite which notice was still being given to them. Second, he contended that under Italian procedural law it was impossible to appeal against sentences imposed in absentia, for which reason the execution of the European arrest warrant should, where appropriate, be made conditional upon Italy’s guaranteeing the possibility of appealing against that judgment.

By order of 12 September 2008, the First Section of the Sala de lo Penal of the Audiencia Nacional authorised surrender of Mr Melloni to the Italian authorities. Mr Melloni filed a ‘recurso de amparo’ (petition for constitutional protection) against that order before the Tribunal Constitucional (Constitutional Court). That Court inter alia asked  whether Article 4a(1) of Framework Decision 2002/584 was compatible with the requirements deriving from the right to an effective judicial remedy and to a fair trial, provided for in Article 47 of the Charter and from the rights of the defence guaranteed under Article 48(2) of the Charter.

Regarding the scope of the right to an effective judicial remedy and to a fair trial provided for in Article 47 of the Charter, and the rights of the defence guaranteed by Article 48(2) thereof, the Court first of all observed that, although the right of the accused to appear in person at his trial is an essential component of the right to a fair trial, that right was not absolute (see, inter alia, Case C619/10 Trade Agency [2012]).

The accused might waive that right of his own free will, either expressly or tacitly, provided that the waiver was established in an unequivocal manner, was attended by minimum safeguards commensurate to its importance and did not run counter to any important public interest. In particular, violation of the right to a fair trial had not been established, even where the accused did not appear in person, if he was informed of the date and place of the trial or was defended by a legal counsellor to whom he had given a mandate to do so.

The Court stressed that this interpretation of Articles 47 and 48(2) of the Charter was in keeping with the scope that had been recognised for the rights guaranteed by Article 6(1) and (3) of the ECHR by the case-law of the European Court of Human Rights (see, inter alia, ECtHR, Medenica v. Switzerland, no. 20491/92, § 56 to 59, ECHR 2001-VI; Sejdovic v. Italy [GC], no. 56581/00, § 84, 86 and 98, ECHR 2006-II; and Haralampiev v. Bulgaria, no. 29648/03, § 32 and 33, 24 April 2012).

The Court furthermore pointed out that, as indicated by Article 1 of Framework Decision 2009/299, the objective of the harmonisation of the conditions of execution of European arrest warrants issued for the purposes of executing decisions rendered at the end of trials at which the person concerned had not appeared in person, effected by that framework decision, was to enhance the procedural rights of persons subject to criminal proceedings whilst improving mutual recognition of judicial decisions between Member States.

The Court thus found Article 4a(1) of Framework Decision 2002/584 to be compatible with the requirements under Articles 47 and 48(2) of the Charter.

As mentioned, the national court also asked whether Article 53 of the Charter must be interpreted as allowing the executing Member State to make the surrender of a person convicted in absentia conditional upon the conviction being open to review in the issuing Member State, in order to avoid an adverse effect on the right to a fair trial and the rights of the defence guaranteed by its constitution.

The Court stated that the interpretation envisaged by the national court at the outset was that Article 53 of the Charter gave general authorisation to a Member State to apply the standard of protection of fundamental rights guaranteed by its constitution when that standard was higher than that deriving from the Charter and, where necessary, to give it priority over the application of provisions of EU law.

The Court pointed out that such an interpretation would, in particular, allow a Member State to make the execution of a European arrest warrant issued for the purposes of executing a sentence rendered in absentia subject to conditions intended to avoid an interpretation which restricted or adversely affected fundamental rights recognised by its constitution, even though the application of such conditions was not allowed under Article 4a(1) of Framework Decision 2002/584.

The Court stressed that such an interpretation of Article 53 of the Charter would undermine the principle of the primacy of EU law inasmuch as it would allow a Member State to disapply EU legal rules which were fully in compliance with the Charter where they infringed the fundamental rights guaranteed by that State’s constitution.

The Court reiterated that by virtue of the principle of primacy of EU law rules of national law, even of a constitutional order, could not be allowed to undermine the effectiveness of EU law on the territory of that State (see Case 11/70 Internationale Handelsgesellschaft [1970], and Case C409/06 Winner Wetten [2010])

The Court held that allowing a Member State to avail itself of Article 53 of the Charter to make the surrender of a person convicted in absentia conditional upon the conviction being open to review in the issuing Member State, a possibility not provided for under Framework Decision 2009/299, in order to avoid an adverse effect on the right to a fair trial and the rights of the defence guaranteed by the constitution of the executing Member State, by casting doubt on the uniformity of the standard of protection of fundamental rights as defined in that framework decision, would undermine the principles of mutual trust and recognition which that decision purported to uphold and would, therefore, compromise the efficacy of that framework decision.

The Court thus concluded Article 53 of the Charter must be interpreted as not allowing a Member State to make the surrender of a person convicted in absentia conditional upon the conviction being open to review in the issuing Member State, in order to avoid an adverse effect on the right to a fair trial and the rights of the defence guaranteed by its constitution.