OPINION OF ADVOCATE GENERAL
BOBEK
delivered on 20 December 2017 (1)
Case C‑571/17 PPU
Openbaar Ministerie
v
Samet Ardic
(Request for a preliminary ruling
from the Rechtbank Amsterdam (District Court, Amsterdam, Netherlands))
(Reference for a preliminary ruling — European arrest warrant — Framework Decision 2002/584/JHA — European arrest warrant issued for the purpose of executing a custodial sentence or a detention order — Reasons for optional non-execution — Article 4a of the Framework Decision — ‘Trial resulting in the decision’ — Scope — Person sentenced to a custodial sentence in final proceedings conducted in his presence — Suspension of execution subject to a custodial sentence already partially served — Non-compliance with the conditions laid down — Subsequent proceedings leading to the revocation of the suspension of the execution of the sentence — Proceedings conducted without the person concerned appearing in person)
I. Introduction
1. Mr Samet Ardic, a German national, is the subject of a European arrest warrant (‘EAW’) issued by the German judicial authority. That authority seeks the surrender of Mr Ardic, currently detained in the Netherlands, for the purpose of executing the remainder of the custodial sentences imposed by two judgments. Having already served a portion of those sentences, Mr Ardic was granted a suspension of the execution of the sentences. That suspension was subsequently revoked on the ground that Mr Ardic had failed to comply with the conditions relating to his provisional release.
2. Although Mr Ardic appeared in person at the trial giving rise to two final judgments imposing two custodial sentences on him, he did not appear in person at the trial resulting in two decisions revoking the suspension of the execution of the remainder of those sentences.
3. The present case concerns the scope of Article 4a of Framework Decision 2002/584/JHA(2). The referring court asks whether the concept of ‘trial resulting in the decision’ set out therein refers to the proceeding that led to the decisions revoking the suspension of the execution of the remainder of the custodial sentences.
II. Legal framework
A. The ECHR
4. Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (3) (‘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
5. 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.
…’
6. 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
7. Article 1(2) of the Framework Decision 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’.
8. 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]’.
9. Article 4a of the Framework Decision was introduced by Framework Decision 2009/299/JHA, (4) 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.
…’
III. Facts, the main proceedings and the question referred for a preliminary ruling
10. On 13 June 2017, the Rechtbank Amsterdam (District Court, Amsterdam, Netherlands) received a request from the officier van justitie bij de rechtbank (Public Prosecutor’s Office, Netherlands) concerning the examination of an EAW issued on 9 May 2017 by the Staatsanwaltschaft Stuttgart (Public Prosecutor’s Office, Stuttgart, Germany).
11. That EAW seeks the arrest and surrender of Mr Ardic, a German national, for the purpose of carrying out in Germany two custodial sentences. Two final judgments relating to nine criminal offences form the basis of the EAW. In the first place, the judgment of 4 March 2009 of the Amtsgericht Böblingen (District Court, Böblingen, Germany) by which a custodial sentence of one year and eight months was imposed on Mr Ardic. In the second place, the judgment of 10 November 2010 of the Amtsgericht Stuttgart-Bad Cannstatt (District Court, Bad Cannstatt district, Stuttgart, Germany) by which a custodial sentence of one year and eight months was imposed on Mr Ardic.
12. According to part (d) of the EAW, Mr Ardic appeared in person at the trials resulting in those two judgments.
13. By two decisions (of 4 January 2010 and 31 May 2011 respectively), the courts that delivered judgments referred to in paragraph 11 of this Opinion suspended the execution of the remainder of the sentences imposed by those judgments (5).
14. Those suspensions were revoked by two decisions of the Amtsgericht Stuttgart-Bad Cannstatt (District Court, Bad Cannstatt district, Stuttgart) of 18 and 4 April 2013 respectively (‘the revocation decisions’). The execution of the remainder of the custodial sentences was ordered on the ground that the person concerned had failed to comply with the conditions of his provisional release and had evaded, notwithstanding reminders, the supervision and guidance of his probation officer and the supervision of the court. Those revocation decisions are final. Therefore, Mr Ardic must still complete 338 days of the custodial sentence imposed in the case heard on 4 March 2009 by the Amtsgericht Böblingen (Böblingen District Court) and 340 days of the custodial sentence imposed in the case heard on 10 November 2010 by the Amtsgericht Stuttgart-Bad Cannstatt (Stuttgart-Bad Cannstatt District Court).
15. The referring court concludes from the EAW in question that Mr Ardic did not appear in person at the trial giving rise to the revocation decisions, which was confirmed by Mr Ardic. The latter also stated that, had he known of the date and place of that trial, he would have appeared in order to convince the competent court to refrain from revoking the suspension of the execution of the sentences.
16. Part (f) of the EAW (optional information concerning ‘other circumstances relevant to the case’) states that the requested person was served with the revocation decisions by way of publication. He should therefore be granted a posteriori the right to be heard with regard to those decisions, without it having a direct effect on their enforceability.
17. According to the referring court, the competent court is obliged under German law to revoke the decision on the suspension of the execution of the remainder of the sentences if the convicted person persists in evading the supervision and guidance of the probation officer and/or persists in failing to comply with the conditions of that suspension. On the other hand, the German court must refrain from such a revocation if the setting of further conditions or the extension of the probationary period would suffice. It is evident from the revocation decisions that the Amtsgericht Stuttgart-Bad Cannstatt (District Court, Bad Cannstatt district, Stuttgart)established that the imposition of further conditions or the extension of the probationary period was insufficient and that the revocation was in accordance with the principle of proportionality. The referring court observes that German courts have a margin of discretion when taking a revocation decision, which allows them to take into account the situation or personality of the person concerned.
18. In the light of the judgment in Zdziaszek, the referring court observes that the Court made a distinction, for the purposes of applying Article 4a of the Framework Decision, between measures which modify the quantum of the penalty imposed and measures relating to the methods for executing a custodial sentence (6). The referring court states that the revocation decisions at issue in the main proceedings do not modify the quantum of the penalty. However, that does not necessarily mean that Article 4a of the Framework Decision does not apply to the revocation decisions, taking into account the high level of protection guaranteed by the Charter. The referring court observes that a revocation decision could be as significant for the person concerned as a collective sentence (at issue in Zdziaszek) in respect of which the judge enjoys a margin of discretion.
19. It was in those circumstances that the Rechtbank Amsterdam (District Court, Amsterdam) decided to stay the proceedings and to refer the following question to the Court for a preliminary ruling:
‘If the requested person has been found guilty in final proceedings conducted in his presence and has had imposed on him a custodial sentence, the execution of which has been suspended subject to certain conditions, do subsequent proceedings in which the court, in the absence of the requested person, orders that suspension to be revoked on the ground of non-compliance with conditions and evasion of the supervision and guidance of a probation officer constitute a “trial resulting in the decision” as referred to in Article 4a of Framework Decision [2002/584]?’
IV. The urgent procedure before the Court of Justice
20. 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. In support of that request, it argued that the question referred for a preliminary ruling concerns the interpretation of the Framework Decision, which falls under 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. An urgent answer by the Court will have a direct and decisive impact on the duration of the detention of the person concerned.
21. The Fifth Chamber of the Court decided on 12 October 2017 to grant that request.
22. Written observations were lodged by the Openbaar Ministerie (Public Prosecutor’s Office, Netherlands), Mr Ardic, the German and Netherlands Governments, and the European Commission. The aforementioned and the Irish Government presented their oral arguments at the hearing held on 22 November 2017.
V. Assessment
23. By its question, the referring court seeks to ascertain whether the concept of ‘trial resulting in the decision’ within the meaning of the introductory sentence of Article 4a(1) of the Framework Decision, covers the proceeding that led to the final decision revoking the suspension of the execution of the remainder of the custodial sentence. The present case thus concerns the scope of Article 4a of the Framework Decision.
24. This Opinion is structured as follows. After some preliminary observations on the relevant procedural framework under German law and the case-law of the ECtHR (A), I will first give an interpretation of Article 4a of the Framework Decision (B). I shall then examine the specific question of the decision revoking the suspension of the execution of the remainder of the custodial sentence within the context of Article 4a of the Framework Decision (C). Lastly, I shall make a few brief comments on fundamental rights within the scheme of the Framework Decision (D).
A. Preliminary observations
25. The question in the present case for a preliminary ruling is closely linked to the questions dealt with by the Court in Tupikas (C‑270/17 PPU) and Zdziaszek (C‑271/17 PPU). In the first case, the Court found, in particular, that, for the purposes of applying Article 4a(1) of Framework Decision 2002/584, the concept of ‘trial resulting in the decision’ must be understood, in the event that proceedings have taken place at several instances, as referring to appeal proceedings, provided that the decision rendered following those proceedings made a final ruling on the guilt of the person concerned and imposed a penalty on him (7). In Zdziaszek, the Court held that the concept of ‘trial resulting in the decision’ also refers to subsequent proceedings, such as those leading to a judgment handing down a cumulative sentence, at the end of which a decision that finally amends the level of the initial sentences is handed down, inasmuch as the authority which adopted those decisions enjoys a certain discretion (8).
26. In the latter case, the Court also held, citing a judgment of the European Court of Human Rights in Boulois (9), that ‘it is … necessary to make a distinction between measures [modifying the quantum of the penalty or penalties imposed] and those relating to the methods of execution of a custodial sentence. It is moreover apparent from the case-law of the ECtHR that Article 6(1) of the ECHR does not apply to questions concerning the methods for executing a sentence, in particular those relating to provisional release (10)’.
27. In that context, the question for a preliminary ruling referred by the referring court in the present case is linked to the distinction between, on the one hand, decisions ruling on the question of guilt and the sentence and, on the other, decisions relating to the ‘methods of execution of a custodial sentence’. In accordance with the judgment in Zdziaszek, decisions concerning the methods for executing a sentence fall outside the scope of Article 6(1) of the ECHR (11), which could, accordingly, be interpreted as excluding ‘methods of execution’ from the scope of Article 4a of the Framework Decision.
28. In order to give a useful answer to the referring court in the present case, two preliminary clarifications are necessary. In the first place, it is necessary to clarify what, under German law, is the specific nature of the proceeding leading to the decision revoking the suspension of the execution of the remainder of the custodial sentence (1). In the second place, there is also a need to reflect on the concept of ‘methods of execution of a custodial sentence’ in the case-law of the ECtHR (2).
1. The proceedings leading to the revocation of the suspension of the execution of the remainder of a custodial sentence under German law
29. The German Government was requested by the Court to clarify the German rules governing proceedings leading to the revocation of the suspension of the execution of the remainder of a custodial sentence. The German Government provided the following explanations.
30. In the first place, Paragraph 57 of the Strafgesetzbuch (German Criminal Code) (‘the StGB’) provides for suspension with probation where a portion of the custodial sentence has already been served (12). The court suspends the execution of the remainder of the custodial sentence if two thirds of the imposed sentence, but not less than two months, have been served, if the convicted person consents and the release is appropriate considering public security interests (13). After one half of a fixed-term sentence of imprisonment, but not less than six months, have been served, the court may suspend the execution of the remainder of the sentence and grant provisional release under more stringent conditions (14).
31. The competent court may order the suspended sentence to take effect if the convicted person grossly or persistently infringes directions or persistently evades the supervision and guidance of the probation officer, thereby causing reason for fear that he will re-offend (15). By contrast, the court will not order the suspended sentence to take effect if it would suffice to impose further conditions or directions, in particular to place the convicted person under the supervision of a probation officer or prolong the operational period or period of supervision (16). In the event of non-compliance with those conditions, the court must revoke the suspension of the execution of the remainder of the sentence.
32. In the second place, subsequent decisions relating to the suspension with probation of the execution of the remainder of a custodial sentence are governed by Paragraph 453 of the Strafprozessordnung (German Code of Criminal Procedure) (‘the StPO’). Where revocation of suspension of the execution of the sentence is being considered, the court must give the convicted person an opportunity to be heard orally (17). Revocation of the suspension of the execution of the sentence may be contested by immediate complaint lodged by the convicted person within one week of it being notified of the revocation order (18). If the residence of the convicted person is unknown and notification cannot be made in the required manner, public notification of the order by means of displaying a notice on the court’s noticeboard is permissible. Notification is deemed to have been effected if one month has elapsed since the notice was displayed. The aforementioned time limit of one week to lodge an immediate complaint starts to run from that moment. On expiry of that time limit, the revocation order becomes final (19).
33. The German Government explained at the hearing that the convicted person must be given the opportunity to be heard even if he does not actually become aware of the revocation decision notified publicly until after the one week time limit has elapsed. It is apparent from national case-law on Paragraph 33a of the StPO that, in such a situation, the convicted person must be given the opportunity to make known his objections to the revocation and to put forward new facts. Following that hearing, the proceedings can be reinstated, automatically or on request, at the stage they were at prior to the adoption of the revocation decision in question.
2. The ‘methods of execution of a custodial sentence’ in the case-law of the ECtHR
34. As the Court held in Zdziaszek (20), it is apparent from the case-law of the ECtHR that the guarantees laid down in Article 6(1) of the ECHR apply not only to the finding of guilt, but also to the determination of the sentence (21).
35. However, according to the case-law of the ECtHR, questions concerning the methods for executing a custodial sentence do not fall within the scope of Article 6(1) of the ECHR (22). In particular, the ECtHR has ruled that the criminal head of Article 6(1) of the ECHR does not apply to proceedings concerning the prison system which do not relate, in principle, to the determination of a ‘criminal charge’(23).
36. The ECtHR and the former European Commission of Human Rights have considered that the protection afforded by Article 6(1) of the ECHR is not applicable to proceedings concerning prison leave (24), the application of an amnesty (25), the grant of conditional release (26), provisional release relating to detention on remand (27), or the transfer of sentenced persons (28). The same is true of proceedings leading to the revocation of the suspension of the execution of a sentence, at least according to the case-law of the former European Commission of Human Rights (29).
37. As noted by the referring court, that approach is consistent with the case-law of the ECtHR relating to the concept of ‘penalty’ within the meaning of Article 7 of the ECHR (30).
38. However, the ECtHR has also acknowledged, in the context of Article 7 of the ECHR, that in practice the distinction between a measure that constitutes a ‘penalty’ and a measure that concerns the ‘execution’ or ‘enforcement’ of the penalty may not always be clear-cut (31). The ECtHR has also acknowledged that Article 6(1) of the ECHR applies to measures closely related to the criminal proceedings and to the final determination of the sentence (32).
39. Moreover, there are doubts as to whether measures relating to the methods for executing a sentence fall within the scope, in certain cases, of Article 6(1) of the ECHR under its civil head (33). Although the Grand Chamber of the ECtHR held, in Boulois,that the civil head of Article 6(1) of the ECHR was not applicable, that answer was based on the fact that ‘prison leave’ did not constitute a right, with the determination of what constitutes a ‘right’ being closely linked to how it is recognised in the domestic legal system (34).
40. Lastly, there is no specific provision in Article 6(1) of the ECHR for the guarantees inherent in the more specific right of the accused person to appear at the hearing. They were initially identified by the ECtHR in the specific context of the criminal head of Article 6(1) of the ECHR (35) before recently being extended to cover the civil head (36).
B. Interpretation of Article 4a of the Framework Decision
41. So far as concerns the question whether the proceeding that led to the revocation decision falls within the scope of Article 4a of the Framework Decision and whether such a decision equates to a method of execution of a sentence, there are differing interpretations amongst the parties concerned.
42. Mr Ardic claims that Article 4a concerns revocation proceedings such as those at issue in the main proceedings. He submits, first of all, that Article 6 of the ECHR applies to revocation decisions. As for the ‘criminal head’ of Article 6 of the ECHR, Mr Ardic submits that revocation proceedings may result in changes being made to the sentence during those proceedings, and that the courts enjoy a margin of discretion in that regard. Next, Article 6 of the ECHR under its civil head may also apply, in so far as revocation proceedings involve the ‘right to liberty’. In any event, even if it were acknowledged that Article 6 of the ECHR does not apply to revocation proceedings, Articles 47 and 48 of the Charter would grant more extensive protection. In particular, Article 47 of the Charter is much wider in scope and is likely to cover revocation proceedings such as those at issue in the main proceedings. Article 4a of the Framework Decision must be interpreted in the light of those provisions.
43. The Irish Government submits that, in circumstances where the revocation is not automatic and where the court enjoys a margin of discretion, a person must be regarded as still being subject to criminal proceedings at the hearing relating to the revocation of the suspension of the execution of the remainder of the sentence. In such circumstances, it constitutes the proceeding that led to the judicial decision which finally sentenced the person whose surrender is sought (to use the terminology employed by the Court in paragraph 74 of the judgment of 10 August 2017, Tupikas,C‑270/17 PPU, EU:C:2017:628). Referring to paragraph 91 of the judgment of 10 August 2017, Zdziaszek (C‑271/17 PPU, EU:C:2017:629), the Irish Government takes the view that it is a decision which determines the quantum of the sentence. The considerations identified by the Court in paragraph 84 of the abovementioned judgment in Tupikas should accordingly apply by analogy, considering that the hearing relating to the revocation of the suspension of the execution of the sentence could lead to the deprivation of liberty. Having regard to the potential consequences for the individual, such proceedings relate to the determination of a criminal charge within the meaning of Article 6(1) of the ECHR. In any event, more extensive protection could be granted under Article 47 of the Charter, in accordance with Article 53(2) thereof.
44. By contrast, the Netherlands Public Prosecutor’s Office, the Netherlands and German Governments, and the Commission essentially share the view that the revocation decisions at issue in the main proceedings fall outside the scope of Article 4a of the Framework Decision. First, that conclusion follows, in particular, from paragraph 85 of the judgment of 10 August 2017, Zdziaszek (C‑271/17 PPU, EU:C:2017:629). According to those interested parties, a relevant examination for the purposes of Article 4a covers only the question of guilt and the sentence. A distinction should therefore be made between the finding of guilt/determination of the sentence and subsequent proceedings relating to the methods of execution of the penalty imposed. As revocation decisions constitute methods of execution, they do not fall within the scope of Article 4a of the Framework Decision. Second, the sentence is certain and final in the present case, unlike in Zdziaszek where the quantum of the sentence was not determined. The subsequent decisions revoking the suspension of the execution of the sentence in no way altered the two final convictions imposing two custodial sentences of one year and eight months. The revocation decisions indicate what must be executed: the remainder of the initial sentences imposed. Third, the court enjoys a margin of discretion only in the determination of the sentence. The fact that, in the proceedings at issue in the present case, the court enjoys a margin of discretion in revoking the suspension of the execution of the sentence has no bearing on the quantum of the sentence.
45. The above arguments indicate that the scope of the guarantees under Article 6 of the ECHR and the determination of what constitutes a method of execution of a sentence raise complex issues. It is true that, in the light of the case-law of the ECtHR, the concept of ‘methods of execution’ and its implication on the applicability of the criminal and civil limbs of Article 6 of the ECHR are not entirely clear, in particular so far as concerns the revocation decisions at issue in the main proceedings, as provided for under German law.
46. However, in my opinion, that discussion is of limited importance with regard to the present case. Identifying what constitutes a method of execution for the purposes of Article 6 of the ECHR is not crucial to answering the question for a preliminary ruling raised by the referring court, in so far as it specifically relates to the interpretation of Article 4a of the Framework Decision. Consequently, what is important in order to give a useful answer to the referring court is to interpret Article 4a of the Framework Decision. It is necessary, for that purpose, to return to the wording and scheme (1), the origin (2) and aim of that provision (3).
1. Wording and scheme
47. The concept of ‘trial resulting in the decision’ contained in Article 4a(1) of the Framework Decision must be regarded as an autonomous concept of EU law (37). However, the wording of that provision does not, of itself, make it possible to define more precisely the concept ‘trial resulting in the decision’. The same is true of the concept included in the title of Article 4a of the Framework Decision which merely refers to ‘decisions rendered following a trial at which the person did not appear in person’ (38).
48. Accordingly, it is necessary to refer to the wording and scheme of the whole of Article 4a and to the other provisions of the Framework Decision.
49. In the first place, Article 4a applies to European arrest warrants issued for the purpose of executing a custodial sentence or detention order. It is therefore clear that that provision is relevant only with regard to a decision convicting the person concerned (39). There is therefore a clear link between the scope of that provision and the decision to be executed.
50. In that regard, several provisions of the Framework Decision clarify the concept of ‘decision’ to be reached at the trial, within the meaning of Article 4a of the Framework Decision. Article 8(1)(c) and (f) of the Framework Decision refer to an ‘enforceable judgment’ or ‘any other enforceable judicial decision having the same effect’ and to the ‘penalty imposed’ in the ‘final judgment’ in terms of the information which the EAW must contain. Likewise, paragraph (d)(2) of the Annex to the Framework Decision refers to the ‘enforceable judgment’. Those elements demonstrate that Article 4a clearly refers to the trial which led to the decision convicting the person concerned, which, according to the Court, must be final (40).
51. In the second place, the different hypothetical cases referred to in Article 4a(1) of the Framework Decision as exceptions to the right to refuse to execute the EAW demonstrate the fact that the trial at issue is the trial that leads to finding of guilt and/or determination of the sentence, in other words a decision containing the elements which make up a criminal conviction.
52. In particular, Article 4a(1)(b) of the Framework Decision refers to effective defence by a legal counsellor at the trial. Article 4a(1)(c) of the Framework Decision refers to the situation where, after being informed about the right to a retrial, or an appeal, which allows the merits of the case to be re-examined, the person concerned does not contest the decision or does not request a retrial. Article 4a(1)(d) the Framework Decision refers to the situation in which the person will be personally served with the decision after the surrender and will be expressly informed of his or her right to a retrial, or an appeal which allows the merits of the case, including fresh evidence, to be re-examined, and which may lead to the original decision being reversed.
53. It follows that, within the meaning of Article 4a, the decision to be reached at the trial is ‘the judicial decision which finally sentenced the person whose surrender is sought in connection with the execution of a European Arrest Warrant’ (41). The Court pointed out, in that context, that the term ‘conviction’ refers to both a finding of guilt and the imposition of a penalty or other measure involving deprivation of liberty (42).
54. In Zdziaszek, the Court held that the concept of ‘trial resulting in the decision’ also includes subsequent proceedings leading to the judgment handing down a cumulative sentence. Under these circumstances, the decisive element is clearly that such proceedings resulted in a decision that amended the level of the initial sentence, inasmuch as the authority which adopted that decision enjoyed a certain discretion in that regard (43). Accordingly, the concept of ‘trial resulting in the decision’ interpreted in the specific context of Article 4a of the Framework Decision focuses on the procedural phase during which the merits of the case are examined and which is decisive for the sentencing of the person concerned (44).
55. In the light of the elements analysed above, it may be concluded that the concept of ‘trial resulting in the decision’ does not include proceedings subsequent to the trial that led to a final conviction, in so far as such proceedings have no bearing on the finding of guilt and the determination of the level of the sentence.
2. Origin of Article 4a
56. The origin of Framework Decision 2009/299 confirms that Article 4a of the Framework Decision concerns only the specific right to appear in person at the trial, understood as meaning the proceedings leading to a final conviction (finding of guilt and the determination of the sentence).
57. In the first place, Framework Decision 2009/299, which introduced Article 4a, establishes common rules for the recognition and/or execution of judicial decisions ‘following proceedings at which the person concerned was not present’ (45). The objective of that instrument is to strengthen the right to a fair trial of an accused person guaranteed by the ECHR and specifically includes ‘the right of the person concerned to appear in person at the trial’ (46). Framework Decision 2009/299 and, in particular, Article 4a thereof, thus specifically covers one of the elements included in the right to a fair trial enshrined in Article 6 of the ECHR, in that the Framework Decision stems from the object and purpose of that provision taken as a whole: the right of an accused person to appear in person at the trial, as interpreted by the ECtHR (47). The hypothetical cases set out in Article 4a echo that case-law (48).
58. Accordingly, Article 4a of the Framework Decision, as an optional ground for refusing to execute an EAW issued for the purpose of executing an enforceable judgment, specifically covers, in view of the objective and content of Framework Decision 2009/299, the guarantees linked to the specific right of the person concerned to appear in person at the trial. The purpose of Article 4a is not to incorporate all the procedural guarantees of Article 6 of the ECHR (or, by analogy, the potentially more extensive guarantees of Articles 47 and 48 of the Charter) as factors capable of justifying the refusal to execute an EAW. Article 4a exclusively covers the guarantees relating to the right to appear in person at the trial.
59. In the second place, the fact that Article 4a of the Framework Decision is limited in subject matter to legal proceedings ruling on the substance of a criminal conviction is confirmed by its drafting history. The original wording of that provision, set out in the Initiative of Member States that led to the adoption of Framework Decision 2009/299, referred to the broad term ‘proceedings’, which was ultimately rejected in favour of the more precise term ‘trial’ (49).
60. Accordingly, the fact that the person concerned has not been heard during proceedings subsequent to the trial, such as proceedings leading to the revocation of a decision suspending the execution of a sentence, does not render the enforceable judgment delivered at the trial a judgment in absentia or by default, within the meaning of Article 4a of the Framework Decision.
3. Teleological interpretation
61. So far as concerns the teleological interpretation, Article 4a of the Framework Decision must be interpreted in the light of its overall objectives and those of Framework Decision 2009/299.
62. The objective of the changes introduced by Framework Decision 2009/299 was twofold: to enhance the procedural rights of persons subject to criminal proceedings, whilst facilitating judicial cooperation in criminal matters and, in particular, improving mutual recognition of judicial decisions between Member States (50).
63. With regard to facilitating judicial cooperation, it is apparent from recital 3 of Framework Decision 2009/299 that the EU legislature wished to put an end to the situation envisaged in Article 5 of the initial version of the Framework Decision, under which it was for the executing authority to assess whether the assurances given as to the opportunity to apply for a retrial of the case were adequate (51).
64. The balance between that objective and the aim of enhancing the procedural rights of the individual is guaranteed, in particular, by the application of the requirements laid down in Article 4a in the light only of the elements which lie at the heart of the actual trial, namely the question of guilt and the determination of the sentence. It is in respect of those elements that a greater level of protection in the event of a conviction rendered in absentia is afforded.
65. A broad interpretation of those requirements beyond the actual trial, within the meaning of Article 4a of the Framework Decision, would risk upsetting the delicate balance sought by the Framework Decision as a whole, and by the 2009 changes. Such an approach would risk referring secondary procedural elements relating to the criminal proceedings, including elements subsequent to the final judgment or prior to the start of the actual trial, to the executing authority for consideration.
66. As the referring court observes, it is certainly possible to claim that a decision revoking the suspension of the execution of the remainder of a custodial sentence has significant consequences for the person concerned. However, from a practical point of view, making surrender subject to the right to be heard during proceedings leading to revocation decisions such as those at issue in the main proceedings would have the effect of hindering the functioning of the Framework Decision in all cases where a convicted person who is no longer in the territory of the convicting Member State (and who has not informed the authorities of the change of residence) fails to comply with probation measures.
67. So far as this point is relevant, it may be noted, moreover, that EU law provides for a specific procedure to ensure that persons subject to probation measures may move within the territory of other Member States, whilst complying with those measures (52).
C. Proceedings leading to the revocation of a decision suspending the execution of a sentence
68. It is apparent from the above considerations that the concept of ‘trial resulting in the decision’, within the meaning of Article 4a of the Framework Decision, refers to the trial (at first instance or on appeal) that led to the enforceable judgment convicting the person concerned (guilt and sentence), since that judgment forms the basis of the custodial sentence the execution of which is the subject of the EAW. Such an interpretation leads to the conclusion that Article 4a of the Framework Decision does not apply to proceedings subsequent to the trial that led to a final conviction, where such proceedings have no bearing on the finding of guilt or the level of the sentence.
69. In the light of the foregoing, it would appear that the revocation of a decision suspending the execution of the remainder of custodial sentences, as it was presented by the referring court and explained by the German Government, does not therefore fall within the scope of Article 4a of the Framework Decision.
70. First, it is apparent from the decision to refer that the revocation decisions in question have not modified the quantum of the sentences imposed by the final judgments on which the EAW in question is based. The only enforceable judgment that serves as the basis for the EAW is the conviction. The revocation decisions do not constitute a new decision on the substance, which could form the basis of the EAW. The revocation decisions cannot be considered independently of the judgments delivered in final proceedings containing elements relating to the question of guilt and the determination of the sentence still to be executed (53).
71. Second, the revocation decisions reactivate the sentences imposed by final judgment at the time of the conviction, even though they were then suspended subject to certain conditions. An arithmetic calculation must then be made of the remaining days to be served in relation to the portion of the sentence already completed. The margin of discretion enjoyed by the judicial authorities of the issuing Member State in that regard does not concern the elements of the conviction, namely the finding of guilt and the determination of the sentence.
72. Third, the purpose of such revocation proceedings differs to that of the criminal proceedings that lead to a judgment determining guilt and imposing a sentence. Revocation proceedings, and the margin of discretion enjoyed by the courts in that specific context, concern the assessment of whether the conditions attached to a suspended sentence have been complied with and whether the setting of further conditions is relevant. They do not concern the final proceedings that led to the finding of guilt or the determination of the sentence. (54)
D. Respect for fundamental rights beyond Article 4a
73. The fact that, as proceedings subsequent to the trial within the meaning of the Framework Decision, the revocation proceedings at issue in the main proceedings do not fall within the scope of Article 4a thereof, does not mean that there are no procedural guarantees at that stage.
74. While the scheme of the Framework Decision is based on mutual trust, it has become increasingly apparent that it is not a matter of blind trust. The trust on which the principle of mutual recognition is founded has a solid basis of equivalent standards and shared responsibilities.
75. In that context and particularly in the cases brought before the Court, the discussion focuses on the role of the executing judicial authority and, in particular, the option of that authority to refuse to execute an EAW on the ground of there being a risk of violations of fundamental rights in the issuing Member State. However, the paramount importance of the obligations incumbent on the issuing Member State cannot be underestimated.
76. On the one hand, the objective of equivalent (but not identical) protection on which the principle of mutual trust is founded has a very strong legal basis. All Member States are party to the ECHR and must effectively guarantee the respect of all the rights enshrined therein, irrespective of whether the proceedings in question relate to the execution of an EAW.
77. Accordingly, while the fact that the person concerned has not been heard at the outset in proceedings leading to the revocation of the suspension of the execution of a custodial sentence is not a ground for refusing to execute the EAW in accordance with Article 4a of the Framework Decision, that in no way means that the right to be heard need not be complied with. That obligation falls within the scope of the obligations incumbent on the issuing Member State and it is in the context of those obligations that fundamental procedural rights, including the right to be heard, must be protected in connection with the implementation of domestic remedies and procedures.
78. The leading role of the issuing Member State with regard to procedural rights is identified, within the EAW system, by Article 1(2) of Framework Decision 2009/299, according to which 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 of the Treaty, including the right of defence of persons subject to criminal proceedings, and any obligations incumbent upon judicial authorities in this respect shall remain unaffected’. That provision, which is similar in scope to Article 1(3) of the Framework Decision, relates to the obligations incumbent on both the issuing and the executing Member States (55). Accordingly, although the aforementioned provisions do not imply that any risk of a violation of a fundamental right is a ground for refusing to execute an EAW, they nevertheless ensure that the level of protection of the fundamental rights is not affected by the fact that the person concerned is the subject of an EAW.
79. German law, as explained by the German Government, thus guarantees the right to be heard during the revocation proceedings at issue, including after the surrender, if the person concerned has not been heard during those proceedings.
80. On the other hand, it should be pointed out that, although the principle of mutual trust implies that Member States may be required to consider all the other Member States to be complying with the fundamental rights (56), it is not an irrefutable presumption. The Framework Decision is part of the legal order of the European Union — a union that respects the fundamental rights — of which the Court’s case-law, in particular Joined Cases Aranyosi and Căldăraru, is the cornerstone (57). That case-law recognises the obligation incumbent on the executing Member State to postpone the decision on the surrender — indeed halt the surrender procedure — following a real and specific assessment of the substantial grounds for believing there is a real risk of serious violations of fundamental rights (58). However, given the factual and legal context of the present case, such a situation is purely hypothetical (59).
81. Finally, it is necessary to point out the importance of the communication between the issuing and the executing authorities, as provided for in Article 15(2) of the Framework Decision. As the Court has repeatedly observed, that provision, which enables the executing judicial authority to request supplementary information, is an essential element of judicial cooperation on which the system of mutual recognition is based (60). In those circumstances, the court of the issuing Member State is expected to gather information through the channels offered by that provision before refusing the execution of an EAW (61).
VI. Conclusion
82. In the light of the foregoing considerations, I propose that the Court answer the question referred by the Rechtbank Amsterdam (District Court, Amsterdam, Netherlands) as follows:
The concept of ‘trial resulting in the decision’, within the meaning of the introductory sentence of Article 4a(1) of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, as amended by Council Framework Decision 2009/299/JHA of 26 February 2009, must be interpreted as meaning that it does not include proceedings leading to the revocation of a decision suspending the execution of a custodial sentence, on the ground of non-compliance with the conditions of the suspension, in so far as such a revocation has no bearing on the finding of guilt or the determination of the sentence which form the basis of the European Arrest Warrant issued.