Opinion of Advocate General Ćapeta delivered on 27 October 2022

1 Original language: English.

2 Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (OJ 2002 L 190, p. 1), as amended by Council Framework Decision 2009/299/JHA of 26 February 2009 amending Framework Decisions 2002/584, 2005/214/JHA, 2006/783/JHA, 2008/909/JHA and 2008/947/JHA, thereby enhancing the procedural rights of persons and fostering the application of the principle of mutual recognition to decisions rendered in the absence of the person concerned at the trial (OJ 2009 L 81, p. 24) (the EAW Framework Decision).

3 These are set out in Articles 3, 4 and 4a of the EAW Framework Decision.

4 Judgment of 5 April 2016, Aranyosi and Căldăraru ( C‑404/15 and C‑659/15 PPU, EU:C:2016:198, paragraph 89).

5 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 61).

6 Cases cited in footnotes 4 and 5 above and judgment of 17 December 2020, Openbaar Ministerie (Independence of the issuing judicial authority) ( C‑354/20 PPU and C‑412/20 PPU, EU:C:2020:1033, paragraphs 51 and 52); see, also, judgment of 22 February 2022, Openbaar Ministerie (Tribunal established by law in the issuing Member State) ( C‑562/21 PPU and C‑563/21 PPU, EU:C:2022:100, paragraphs 50, 52, 67 and 68).

7 Puig Gordi and Others (C‑158/21); E. D. L. (Motif de refus fondé sur la maladie) (C‑699/21); and GN (C‑261/22).

8 Judgment of 26 February 2013, Melloni ( C‑399/11, EU:C:2013:107, paragraphs 37 and 63); Opinion 2/13 (Accession of the European Union to the ECHR) of 18 December 2014 ( EU:C:2014:2454, paragraph 191).

9 In that respect, see Council Framework Decision 2009/299. See, also, 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 (OJ 2016 L 65, p. 1) and judgment of 26 February 2013, Melloni ( C‑399/11, EU:C:2013:107, paragraphs 62 and 63).

10 See also, in that respect, Opinion of Advocate General Richard de la Tour in Puig Gordi and Others ( C‑158/21, EU:C:2022:573, point 60). At the time of delivery of this Opinion, that case is still pending before the Court.

11 It should be noted that the referring court is deciding on the appeal against the decision of the High Court (Ireland), which was the first instance court dealing with the EAW in question and decided that it should be executed.

12 Given that the appellant in the main proceedings spent a month in custody during the trial at first instance, he has a maximum of 11 months left to serve.

13 According to available information, the Trigger Offence was committed in 2008, and therefore during the probation period for the First Offences.

14 The parties at the hearing before the Court were not able to confirm who had initiated that appeal.

15 It is not possible to conclude from the file whether there was any discretion in revoking that probation. Hence, in this case, unlike in Case C‑515/21, the referring court also questions the relevance of a possible existence of discretion in revoking the probation for the First Offences.

16 The referring court indicated that due to time limits, the sentence for the Trigger Offence is now spent; that was also confirmed at the hearing before the Court.

17 A denial-of-service attack is a cyberattack in which the perpetrator seeks to make a machine or network resource unavailable to its intended users by temporarily or indefinitely disrupting the services of a host connected to a network. It is typically accomplished by flooding the targeted machine or resource with superfluous requests in an attempt to overload systems and prevent some or all legitimate requests from being fulfilled.

18 According to the available information on that outcome, the issuing judicial authority referred to the enforcement order as obligatory.

19 Judgment of 10 August 2017, Tupikas ( C‑270/17 PPU, EU:C:2017:628).

20 Judgment of 10 August 2017, Zdziaszek ( C‑271/17 PPU, EU:C:2017:629).

21 Judgment of 22 December 2017, Ardic ( C‑571/17 PPU, EU:C:2017:1026).

22 Judgment of 10 August 2017, Tupikas ( C‑270/17 PPU, EU:C:2017:628).

23 Judgment of 10 August 2017, Zdziaszek ( C‑271/17 PPU, EU:C:2017:629).

24 Judgment of 22 December 2017, Ardic ( C‑571/17 PPU, EU:C:2017:1026).

25 Mitsilegas, V., Autonomous concepts, diversity management and mutual trust in Europe’s area of criminal justice, Common Market Law Review, Vol. 57(1), 2020, pp. 45-78, at p. 62.

26 Judgment of 10 August 2017, Tupikas ( C‑270/17 PPU, EU:C:2017:628, paragraph 84); emphasis added.

27 Judgment of 10 August 2017, Zdziaszek ( C‑271/17 PPU, EU:C:2017:629, paragraphs 87 and 91).

28 Judgment of 10 August 2017, Tupikas ( C‑270/17 PPU, EU:C:2017:628, paragraph 81).

29 Judgment of 10 August 2017, Zdziaszek ( C‑271/17 PPU, EU:C:2017:629, paragraph 93).

30 It also follows clearly from the earlier case-law that a decision in the sense of Article 4a(1) of the EAW Framework Decision can concern either the final determination of guilt or the final imposition of a sentence, or both. See judgments of 10 August 2017, Tupikas ( C‑270/17 PPU, EU:C:2017:628, paragraphs 78 and 83), and of 10 August 2017, Zdziaszek ( C‑271/17 PPU, EU:C:2017:629, paragraph 94). In the cases at hand, the questions referred deal with decisions concerning prison sentences for the First Offence(s), not the decisions determining the guilt for that or those offences.

31 Judgment of 10 August 2017, Zdziaszek ( C‑271/17 PPU, EU:C:2017:629, paragraphs 85 and 87).

32 The Court referred to the following ECtHR cases: ECtHR, 21 September 1993, Kremzow v. Austria (CE:ECHR:1993:0921JUD001235086, § 67), concerning the lack of presence at the appeal hearing that concerned the change of a long-term prison sentence to life imprisonment as well as deciding whether that sentence should be served in a normal prison or in a psychiatric hospital, which the ECtHR found to be a violation of Article 6(1) ECHR; ECtHR, 3 April 2012, Boulois v. Luxembourg (CE:ECHR:2012:0403JUD003757504, § 87), concerning the rejection of a request for a one-day prison leave that was found not to form part of the criminal head of Article 6(1) ECHR; and ECtHR, 28 November 2013, Dementyev v. Russia (CE:ECHR:2013:1128JUD004309505, § 23), concerning the lack of presence at the hearing that determined an aggregate sentence that was found to form part of the criminal head of Article 6(1) ECHR.

33 Judgment of 10 August 2017, Zdziaszek ( C‑271/17 PPU, EU:C:2017:629, paragraph 85).

34 For the presentation of the relevant legal framework in Mr Ardic’s case, see judgment of 22 December 2017, Ardic ( C‑571/17 PPU, EU:C:2017:1026, paragraphs 19 to 30), and Opinion of Advocate General Bobek in Ardic ( C‑571/17 PPU, EU:C:2017:1013, points 29 to 33).

35 Judgment of 22 December 2017, Ardic ( C‑571/17 PPU, EU:C:2017:1026, paragraph 75).

36 In that respect, I refer the reader to the Opinion of Advocate General Bobek in Ardic ( C‑571/17 PPU, EU:C:2017:1013, point 46).

37 Case ECtHR, 3 April 2012, Boulois v. Luxembourg (CE:ECHR:2012:0403JUD003757504, § 87). It is worth noting that the ECtHR case-law is not conclusive when it comes to setting a clear rule on what represents a decision on the nature or quantum of a sentence as opposed to one on the methods for executing a sentence.

38 Which is hardly comparable to the suspension of the remainder of a prison sentence, as rightly pointed out by LU in his written observations.

39 Judgment of 22 December 2017, Ardic ( C‑571/17 PPU, EU:C:2017:1026, paragraph 77); emphasis added.

40 See, in that respect, judgment of 22 December 2017, Ardic ( C‑571/17 PPU, EU:C:2017:1026, paragraph 80). All the parties at the hearing before the Court agreed that Ardic can be distinguished from the present two cases on facts. Indeed, the revocation of provisional release in Ardic was not based on a determination of guilt, but rather following the determination that Mr Ardic had left Germany in contravention of the conditions of his provisional release. In the present two cases, the revocation is the consequence of a criminal procedure that resulted in a finding of guilt, the hearings at which the two appellants were not present.

41 The fact that the persons to be surrendered were aware that a conviction for a new offence would or might lead to the revocation of the suspension of the first prison sentence does not change that conclusion. In paragraph 83 in Ardic, the Court, on the contrary, considered that Mr Ardic’s awareness of the fact that he could not leave the country was an argument for excluding the decision revoking the release decision from the scope of Article 4a(1) of the EAW Framework Decision. That may be explained by the Court’s finding that such a breach of the release conditions led to the automatic revocation of the conditional release. However, in the present cases, the revocation of the suspension depended on the finding, by a court of law, of guilt for an offence which resulted in a prison sentence. While Mr Ardic could not change the fact that he had left the country, the appellants in the present cases could influence the finding of guilt and the sentence by being present at the trials for the Trigger Offences.

42 The two appellants in the main proceedings claimed that the activation of the custodial sentence for the First Offence(s) flows directly from the second conviction, and that the two are therefore so closely connected that the second conviction must be taken into account when deciding on the execution of the EAW. Similarly, the referring court is of the view that there is a close nexus between the two trials, which might warrant characterising the second one as the trial resulting in the decision. I agree with those arguments.

43 That is clearly illustrated by the situation in Case C‑514/21, in which the first instance court, after the finding of guilt for the Trigger Offences, imposed only a fine as a sentence, whereas the appellate court changed that sentence into a prison sentence.

44 According to the available information, the revocation of suspension proceedings in Case C‑515/21 was separate, but did not leave any discretion to the deciding judge.

45 Judgment of 22 December 2017, Ardic ( C‑571/17 PPU, EU:C:2017:1026, paragraph 87). See, also, Opinion of Advocate General Richard de la Tour in Puig Gordi and Others ( C‑158/21, EU:C:2022:573, point 12).

46 Article 1(2) of the EAW Framework Decision.

47 See, in that respect, recital 4 of Framework Decision 2009/299, stating, inter alia, that this Framework Decision is aimed at refining the definition of such common grounds allowing the executing authority to execute the decision despite the absence of the person at the trial, while fully respecting the person’s right of defence. …

48 Recital 4 of Framework Decision 2009/299.

49 See recitals 3 and 5 of Framework Decision 2009/299.

50 See recital 1 of Framework Decision 2009/299.

51 Judgment of 24 May 2016, Dworzecki ( C‑108/16 PPU, EU:C:2016:346, paragraph 42).

52 The same conditions seem to be repeated in Directive 2016/343. See, in particular, Article 8(2) and Article 9 thereof.

53 For example, concerning the requirement that the person actually received official information of the scheduled trial under Article 4a(1)(a) of the EAW Framework Decision (see footnote 58 below). See, also, Brodersen, K.H., Glerum, V. and Klip, A., The European arrest warrant and in absentia judgments: The cause of much trouble, New Journal of European Criminal Law, Vol. 13(1), pp. 7-27, at pp. 12 and 21; Klip, A., Brodersen, K.H. and Glerum, V., The European Arrest Warrant and In Absentia Judgments, Maastricht Law Series, No 12, Eleven International Publishing, The Hague, 2020, p. 110.

54 See judgments of 17 December 2020, Generalstaatsanwaltschaft Hamburg ( C‑416/20 PPU, EU:C:2020:1042, paragraphs 43 and 44), and of 19 May 2022, Spetsializirana prokuratura (Trial of an absconded accused person) ( C‑569/20, EU:C:2022:401, paragraphs 34, 35 and 37).

55 In that respect, the present cases incidentally raise another issue: when should the executing authority be satisfied that one of the conditions in Article 4a(1) of the EAW Framework Decision has been met? The communication between the executing and the issuing authorities is based on the form annexed to the EAW Framework Decision, which, as it has predesigned boxes to check, does not seem entirely satisfactory for meaningful communication. In the present cases, multiple exchanges of information took place between the executing and the issuing authorities based on Article 15 of the EAW Framework Decision. Still, that did not seem sufficient from the point of view of the referring court to decide with certainty whether the right to be present at the trial was breached. For example, in Case C‑515/21, the issuing authority explained that there exists a possibility for an extraordinary remedy to reopen the trials for the Trigger Offences. However, it does not seem that the executing authority was satisfied that the requirement set out in Article 4a(1)(d) of the EAW Framework Decision had been met.

56 See Opinion of Advocate General Bot in Melloni ( C‑399/11, EU:C:2012:600, points 80 to 82).

57 See footnote 53 above.

58 An example may be found in the case that led to the judgment of 24 May 2016, Dworzecki ( C‑108/16 PPU, EU:C:2016:346). Poland issued an EAW seeking the surrender of Mr Dworzecki; although the trial had been held in absentia, the Polish issuing authority stated that Mr Dworzecki had received official information of the scheduled trial because that information had been delivered to an adult resident of his household at the address he had provided. Although considered due service under Polish law, that did not meet the condition under Article 4a(1)(a) of the EAW Framework Decision, which requires that the summons be received in person. The Court found that the executing judicial authority in that case may nevertheless proceed with the surrender by taking into account other circumstances that would satisfy that judicial authority as to the fact that Mr Dworzecki’s rights of defence would not be breached (see paragraphs 47 to 52 of that judgment). An intention to escape trial has been found by the ECtHR as a justified reason for not granting a retrial for a decision rendered in absentia. See, for example, ECtHR, 14 June 2001, Medenica v. Switzerland (CE:ECHR:2001:0614JUD002049192, §§ 55 and 56).

59 See, in that respect, judgments of 24 May 2016, Dworzecki ( C‑108/16 PPU, EU:C:2016:346, paragraph 50), and of 17 December 2020, Generalstaatsanwaltschaft Hamburg ( C‑416/20 PPU, EU:C:2020:1042, paragraph 51).

60 Except in the situations covered by Article 5 of the EAW Framework Decision, neither of which apply to the two cases at hand: first, the situation of a crime punishable by a custodial life sentence or lifetime detention order, and, second, when the EAW is issued for the purposes of prosecution.

61 Judgment of 22 December 2017, Ardic ( C‑571/17 PPU, EU:C:2017:1026, paragraph 70).

62 See footnote 7 above.

63 This is the language of the ECtHR. See, for example, ECtHR, 9 July 2019, Kislov v. Russia, (CE:ECHR:2019:0709JUD000359810, §§ 107 and 115).

64 Judgment of 5 April 2016, Aranyosi and Căldăraru ( C‑404/15 and C‑659/15 PPU, EU:C:2016:198, paragraph 88).

65 That right is protected as absolute under Article 3 ECHR and Article 4 of the Charter.

66 Judgment of 25 July 2018, Minister for Justice and Equality (Deficiencies in the system of justice) ( C‑216/18 PPU, EU:C:2018:586, paragraphs 61, 68, 76 and 78).

67 Judgments of 17 December 2020, Openbaar Ministerie (Independence of the issuing judicial authority) ( C‑354/20 PPU and C‑412/20 PPU, EU:C:2020:1033, paragraph 52), and of 22 February 2022, Openbaar Ministerie (Tribunal established by law in the issuing Member State) ( C‑562/21 PPU and C‑563/21 PPU, EU:C:2022:100, paragraph 52).

68 Judgment of 5 April 2016, Aranyosi and Căldăraru ( C‑404/15 and C‑659/15 PPU, EU:C:2016:198, paragraph 89).

69 Judgment of 25 July 2018, Minister for Justice and Equality (Deficiencies in the system of justice) ( C‑216/18 PPU, EU:C:2018:586, paragraphs 61 and 68).

70 That was also confirmed in judgments of 17 December 2020, Openbaar Ministerie (Independence of the issuing judicial authority) ( C‑354/20 PPU and C‑412/20 PPU, EU:C:2020:1033, paragraphs 54 and 66), and of 22 February 2022, Openbaar Ministerie (Tribunal established by law in the issuing Member State) ( C‑562/21 PPU and C‑563/21 PPU, EU:C:2022:100, paragraphs 50 and 52).

71 See footnote 8 above.

72 See, in that respect, Framework Decision 2009/299 and Directive 2016/343.

73 In that respect, see judgment of 17 December 2020, Generalstaatsanwaltschaft Hamburg ( C‑416/20 PPU, EU:C:2020:1042, paragraph 55). For a different opinion, see Böse, M., European Arrest Warrants and Minimum Standards for Trials in absentia – Blind Trust vs. Transnational Direct Effect?, European Criminal Law Review, Vol. 11(3), 2021, pp. 275-287, at pp. 285-286. Böse suggests that the refusal is also allowed if there is a manifest lack of judicial protection in the issuing Member State that deprives the defendant of his right to an effective legal remedy and that the person subject to the EAW should be able to rely on Directive 2016/343 in surrender proceedings too.

74 See, in that respect, Opinion of Advocate General Bobek in Ardic ( C‑571/17 PPU, EU:C:2017:1013, point 78), in which he explained that the EAW Framework Decision recognises the leading role of the issuing Member State with regard to safeguarding the rights of accused persons.

75 See, also, Opinion of Advocate General Richard de la Tour in Puig Gordi and Others ( C‑158/21, EU:C:2022:573, points 85, 87 and 116).