Judging the Charter

The Charter in judicial practise with a special focus on the case of protection of refugees and asylum seekers

Stefano Melloni v Ministerio Fiscal

Case Number: C-399/11

Relevance of Decision

The Melloni Case is important for its interpretation of Article 53 and the principle that the most favourable condition has to be taken into account, when it comes to the relationshipf of Charter rights and rights guaranteed by international treaties like the ECHR or by national (constitutional) law. The Court in this case confirms that, where an EU legal act calls for national implementing measures, national authorities and courts remain free to apply national standards of protection of fundamental rights, provided that the level of protection provided for by the Charter and the primacy, unity and effectiveness of EU law are not thereby compromised.

But it also develops limitations to this principle for cases, where a fundamental rights dispute is exclusively governed by EU law  - like the European arrest warrant. According to the Court, in the concrete case, the framework decision reflected the consensus reached by all the Member States regarding the scope to be given under EU law to the procedural rights enjoyed by persons convicted in absentia who are the subject of a European arrest warrant. Respecting the supremacy of a more favouable national provision would in such a case put at risk the principle of mutual trust  and would therefor compromise the efficacy of the framework decision as such.

Facts of the case

Mr Melloni, while present in Spain, was facing trial for a bankruptcy fraud before an Italian court. A Spanish court authorized his extradition to Italy in order for him to be tried there but, at the same time, released him on bail. Mr Melloni fled and never appeared before the Italian court. The trial took place in absentia, although in the presence of lawyers that Mr Melloni had himself appointed. Mr Melloni was convicted and sentenced to 10 years imprisonment. The decision was upheld by all levels of Italian judiciary.

Some years later Mr Melloni was arrested by the Spanish police. In 2008, a European Arrest Warrant was issued by the Italian court requesting Spanish authorities to surrender Mr Melloni. The Spanish court authorised the surrender, after which Mr Melloni lodged a petition for a constitutional protection before the Spanish Constitutional Court. He claimed that if he was surrendered to Italy Article 24(2) of the Spanish Constitution guaranteeing the right to a fair trial would be violated. The right to a fair trial, as protected by the Spanish Constitution, entailed that he should not be surrendered without Spain imposing on Italy a condition that he would be able to appeal the result of his Italian trial, a possibility which did not exist under Italian procedural law for sentences handed down in absentia.

Legal Questions

  1. Must the Framework Decision on the European arrest warrant be interpreted as precluding Spanish courts to make the surrender of Mr Melloni subject to the possibility of judicial review of his conviction (as required by the case-law of the Spanish Constitutional Court) in order  to guarantee his the rights of defence?

If yes:

  1. Is the Framework Decision compatible with right to an effective judicial remedy and to a fair trial, provided for in Article 47 of the Charter and from the rights of defence guaranteed under Article 48(2) of the Charter?
  2. Does Article 53 of the Charter allow a Member State to make the surrender of a person convicted in absentia conditional upon the conviction being open to review in the requesting State, thus affording a greater level of protection than that deriving from European Union law, in order to avoid an interpretation which restricts or adversely affects a fundamental right recognised by its constitution?

Court Findings

(1) With regards to the first question, the Court recalled that Member States are obliged to act on European arrest warrants and that the executing judicial authority may make the execution subject solely to the conditions set out in the Framework Decision.

One provision of this framework decision precludes judicial authorities from refusing to execute a European arrest warrant issued for the purpose of executing a sentence in a situation where the person concerned has not appeared in person at the trial where, having been made aware of the scheduled trial, he gave a mandate to a legal counsellor to defend him at the trial and was in fact defended by that counsellor.

Since this was the case for Mr. Melloni, the Court found that the wording, scheme and purpose of the framework decision precludes the executing judicial authorities (Spain) from making the execution of a European arrest warrant conditional upon the conviction rendered in absentia being open to review in the Member State that issued the arrest warrant (Italy). (see: paras. 35-46)

(2) the Court found that the framework decision is compatible with the right to an effective judicial remedy and to a fair trial and the rights of the defence as recognized under the Charter. 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 is not absolute. The Framework Decision sets out the circumstances in which the person concerned must be deemed to have waived his right to be present at his trial (paras. 47-54)

(3) The Court held that 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.

The Court stated that Article 53 of the Charter confirms that, where an EU legal act calls for national implementing measures, national authorities and courts remain free to apply national standards of protection of fundamental rights, provided that the level of protection provided for by the Charter and the primacy, unity and effectiveness of EU law are not thereby compromised.

However, the Court argued that casting doubt on the uniformity of the standard of protection of fundamental rights as defined in the framework decision would undermine the principles of mutual trust and recognition which that decision purports to uphold and would, therefore, compromise its efficacy. According to the Court, the framework decision reflects the consensus reached by all the Member States regarding the scope to be given under EU law to the procedural rights enjoyed by persons convicted in absentia who are the subject of a European arrest warrant.

Critical Assessment

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Country

Europe