OPINION OF ADVOCATE GENERAL
BOBEK
delivered on 11 May 2016 (1)
Case C‑108/16 PPU
Openbaar Ministerie
v
Paweł Dworzecki
(Request for a preliminary ruling
from the Rechtbank Amsterdam (District Court, Amsterdam, the Netherlands))
(Reference for a preliminary ruling — Urgent preliminary ruling procedure — Police and judicial cooperation in criminal matters — Framework Decision 2002/584/JHA — European arrest warrant — Surrender procedures between Member States — Optional grounds for non-execution — Sentence handed down in absentia — ‘Summons in person’ — ‘Official notification by other means’ — EU law — Autonomous concepts)
1. The present request for a preliminary ruling was submitted in the context of the execution in the Netherlands of a European arrest warrant issued by a Polish court against Mr Dworzecki. That European arrest warrant seeks the execution of three custodial sentences, one of which was imposed following a procedure in which Mr Dworzecki did not appear in person.
2. The present case mainly raises the question whether notification of a summons to an adult (in this instance Mr Dworzecki’s grandfather), a member of the household residing at the address designated by the requested person, may be regarded as satisfying the condition set out in Article 4a(1)(a)(i) of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, (2) as amended by Council Framework Decision 2009/299/JHA of 26 February 2009 (3) (‘the Framework Decision’).
3. The present reference for a preliminary ruling asks the Court to address the interpretation of certain concepts in Article 4a of the Framework Decision. The answer to the questions submitted will make it possible to define the role of the executing court in verifying the circumstances giving rise to the application of the alternative possibilities referred to in Article 4a(1) of the Framework Decision.
I – Legal framework
A – EU law
4. According to Article 1(2) of the Framework Decision, ‘Member States shall execute any European arrest warrant on the basis of the principle of mutual recognition and in accordance with the provisions of this Framework Decision’. According to Article 1(3), 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]’.
5. Framework Decision 2009/299 amended Framework Decision 2002/584. In particular, it repealed Article 5(1) of the Framework Decision and introduced a new Article 4a, relating to decisions rendered following a trial at which the person did not appear in person.
6. Recital 4 of Framework Decision 2009/299 states the following:
‘It is necessary therefore to provide clear and common grounds for non‑recognition of decisions rendered following a trial at which the person concerned did not appear in person. 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. This Framework Decision is not designed to regulate the forms and methods, including procedural requirements, that are used to achieve the results specified in this Framework Decision, which are a matter for the national laws of the Member States.’
7. Recital 7 of Framework Decision 2009/299 states:
‘The recognition and execution of a decision rendered following a trial at which the person concerned did not appear in person should not be refused if either he or she was summoned in person and thereby informed of the scheduled date and place of the trial which resulted in the decision, or if he or she actually received, by other means, 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. In this context, it is understood that the person should have received such information “in due time”, meaning sufficiently in time to allow him or her to participate in the trial and to effectively exercise his or her right of defence.’
8. According to recital 8 of Framework Decision 2009/299:
‘The right to a fair trial of an accused person is guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, as interpreted by the European Court of Human Rights. This right includes the right of the person concerned to appear in person at the trial. In order to exercise this right, the person concerned needs to be aware of the scheduled trial. Under this Framework Decision, the person’s awareness of the trial should be ensured by each Member State in accordance with its national law, it being understood that this must comply with the requirements of that Convention. In accordance with the case‑law of the European Court of Human Rights, when considering whether the way in which the information is provided is sufficient to ensure the person’s awareness of the trial, particular attention could, where appropriate, also be paid to the diligence exercised by the person concerned in order to receive information addressed to him or her.’
9. Article 4a of the Framework Decision is worded as follows:
‘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 of 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.
…’
B – Netherlands law
10. The Law on Surrender (Overleveringswet, ‘the OLW’) transposes the Framework Decision into Netherlands law. Article 12 of the OLW implements Article 4a(1) of the Framework Decision and provides that:
‘Surrender shall not be authorised where the European arrest warrant is intended to execute a judgment when the accused did not appear in person at the trial resulting in that judgment, unless the European arrest warrant states that, in accordance with the procedural requirements of the issuing Member State:
(a) the accused was summoned in due time 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 the trial in such a manner that it was unequivocally established that he or she was aware of the scheduled trial and was informed that a decision may be handed down if he or she does not appear for the trial;
…’
II – The main proceedings
11. On 30 November 2015, the Rechtbank Amsterdam (District Court, Amsterdam, the Netherlands) was requested by the officier van justitie bij de rechtbank (public prosecutor attached to that court) to execute a European arrest warrant issued on 4 February 2015 by the Sąd Okręgowy w Zielonej Górze (Regional Court, Zielona Góra, Poland) seeking the arrest and surrender of Mr Dworzecki.
12. The arrest warrant was issued with a view to the execution in Poland of three custodial sentences imposed in three judgments delivered on 12 March 2007 (judgment I), 22 June 2010 (judgment II) and 2 June 2011 (judgment III). The sentences are for, respectively, 2 years (of which 7 months and 12 days remain to be served), 8 months and 6 months. (4)
13. It is apparent from point (d) of the European arrest warrant that Mr Dworzecki did not appear in person at the trial leading to judgment II. Also, the issuing judicial authority ticked point 1(b) of the arrest warrant form (corresponding to point 3.1.b of the form annexed to the Framework Decision) applicable where ‘the person was not summoned in person but by other means actually received official information of the scheduled date and place of the trial which resulted in the decision, in such a manner that it was unequivocally established that he or she was aware of the scheduled trial, and was informed that a decision may be handed down if he or she does not appear for the trial’.
14. By way of ‘information about how the relevant condition has been satisfied’ in point 4 of point (d) of the form annexed to the Framework Decision, the issuing judicial authority stated the following:
‘The summons was sent to the address which Mr Paweł Dworzecki had indicated for service of process and it was collected by an adult occupant at this address, Mr Paweł Dworzecki’s grandfather — pursuant to Article 132 of the Code of Criminal Procedure, which states that “in the event of the addressee’s absence from home, the process is to be served on an adult resident of the addressee’s household — if also absent, the process can be served on the landlord or the caretaker or the village chief — on condition they undertake to pass the process on to the addressee”. A copy of the judgment was also sent to the same address and collected by an adult occupant. Besides, Mr Paweł Dworzecki had pleaded guilty and accepted in advance the punishment suggested by the prosecutor.’
15. Mr Dworzecki is in custody in the Netherlands pending actual surrender — already authorised — for judgments I and III and the decision of the referring court on judgment II.
III – The decision to request a preliminary ruling and the questions submitted
16. The referring court observes that, unlike the provisions of Article 4a(1) of the Framework Decision, Article 12 of the OLW contains a mandatory ground for refusal to execute where the requested person did not appear in person at the hearing resulting in the decision forming the basis of the arrest warrant.
17. It is apparent from the decision of the referring court that in the past the Rechtbank Amsterdam (District Court, Amsterdam) has interpreted the phrase ‘in accordance with further procedural requirements of the issuing Member State’, which precedes paragraphs (a) to (d) of Article 12 of the OLW, (5) as meaning that it is for the law of the Member State that issued the European arrest warrant to determine whether the factual situations at issue come within one of the cases listed in that provision. However, as the questions submitted show, the referring court now wonders whether such an interpretation is compatible with the Framework Decision.
18. It was in those circumstances that the Rechtbank Amsterdam (District Court, Amsterdam) decided to stay proceedings and to request the Court to give a preliminary ruling on the following questions:
‘(1) Are the following concepts, used in Article 4a(1)(a) of Framework Decision 2002/584/JHA,
– “in due time … was summoned in person and thereby informed of the scheduled date and place of the trial which resulted in the decision”
and
– “in due time … 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”
autonomous concepts of EU law?
(2) If so:
(a) how should those autonomous concepts generally be interpreted; and
(b) does a case such as the present, which is characterised by the facts that:
– according to the [European arrest warrant], the summons was served, at the address of the requested person, on an adult resident of the household, who undertook to hand the summons over to the requested person;
– it is not clear from the [European arrest warrant] whether and when that resident actually handed the summons over to the requested person;
– it cannot be inferred from the statement which the requested person made at the hearing before the referring court that he was — in due time — aware of the date and place of the scheduled trial,
fall under one of [the] two autonomous concepts [referred to in the first question]?’
IV – The urgent procedure before the Court of Justice
19. The referring court has requested that the present request for a preliminary ruling be dealt with under the urgent procedure provided for in Article 107 of the Rules of Procedure of the Court. The reason stated for that request is that Mr Dworzecki is currently deprived of his freedom pending his actual surrender — already authorised by the referring court for two of the three judgments — and the decision of that court concerning the remaining judgment. The referring court emphasises that the time which the Court of Justice takes to answer the questions submitted to it has a direct and decisive impact on the duration of Mr Dworzecki’s detention.
20. The Fourth Chamber of the Court decided on 10 March 2016 to grant the referring court’s request that the present reference for a preliminary ruling be dealt with under the urgent procedure.
21. Mr Dworzecki, the Netherlands Government and the European Commission submitted written observations. At the hearing on 14 April 2016, in addition to those parties, the Polish Government and the United Kingdom Government also made oral submissions.
V – Assessment
22. By its first question, the referring court seeks to ascertain, in essence, whether the interpretation of certain concepts contained in Article 4a(1)(a)(i) of the Framework Decision must be determined solely by reference to the national law of the issuing Member State or whether they are autonomous concepts of EU law. In the latter situation, the referring court, by its second question, asks the Court how the concepts contained in that provision must be interpreted in the light of the circumstances of the present case.
23. As a preliminary point, it should be made clear that the question of the transformation by the national legislation of an optional ground of non-execution into a mandatory ground underlies the present case. That important question has not yet been examined by the Court, which has only had occasion to rule on the possibility for Member States to limit the situations in which the executing judicial authorities may refuse to surrender a requested person. (6) However, in so far as that question has not given rise to substantiated argument on the part of the Member States and does not constitute a factor necessary to provide a helpful answer to the referring court in the present case, I shall not address it in this Opinion.
A – First question
24. The first question submitted by the referring court distinguishes what are apparently two mutually exclusive possibilities: either the concepts in question are ‘autonomous concepts of EU law’ — the content and interpretation of which are therefore determined uniformly by EU law, which implicitly harmonises national laws —, or those concepts were conceived by reference to national law. (7)
25. All the written and oral observations submitted to the Court maintain that the concepts contained in Article 4a(1)(a)(i) of the Framework Decision are autonomous concepts of EU law.
26. To my mind, such a clear-cut distinction between, on the one hand, the autonomous concepts of EU law and, on the other, those falling within national law does not permit a proper understanding of the problem underlying the present question. The provision at issue does not appear to be an obvious candidate for such a dichotomy. The question submitted by the referring court refers to all the concepts included in Article 4a(1)(a)(i) of the Framework Decision, which constitute the first of the exceptions to the optional ground of non-execution set out in that provision. It would seem artificial to see in that provision a set of juxtaposed autonomous concepts: what it contains, rather, is minimum requirements or independent or autonomous guarantees of EU law which set out, in the form of detailed factual situations, exceptions to the possibility of non-recognition laid down in Article 4a(1) of the Framework Decision. As the Commission suggests, the recitals of Framework Decision 2009/299 demonstrate the legislature’s intention to establish ‘clear and common grounds for non-recognition’ and ‘common solutions’ (8) in relation to decisions delivered in absentia.
27. In fact, Article 4a(1) of the Framework Decision provides for an optional ground for non-execution where the person concerned did not appear in person at his trial. There are, however, four exceptions which deprive the executing judicial authority of the possibility to refuse to execute the European arrest warrant. (9) Those situations are set out in Article 4a(1) of the Framework Decision, which defines the conditions on which the executing authority may not refuse to execute the decision even though the person concerned did not appear at the trial. (10)
28. That system requires cooperation between the issuing and executing judicial authorities based on mutual trust. In practice, it is for the issuing judicial authority to state in the arrest warrant — in accordance with the form annexed to the Framework Decision as amended by Framework Decision 2009/299 — the way in which the guarantees provided for in Article 4a have been respected. Where the issuing authority places a tick in the box indicating that the person concerned did not appear in person at the trial resulting in the decision, it must state expressly whether he was summoned in person (point 3.1.a of the form annexed to the Framework Decision) or, if not, whether by other means he actually received official information (point 3.1.b of the form). In the latter situation, the issuing authority must state (in accordance with point 4 of the form) how that condition has been met. That necessarily assumes a description of the facts and also the legal classification of certain matters, in accordance with the assessment of the issuing authority.
29. The fact that the issuing authority is required to indicate that factual information in point 4 of the form confirms the role of reviewing or verifying that information conferred on the executing authority. Thus, the information in the European arrest warrant relating to the way in which the person concerned was informed enables the executing authority to exercise its powers in relation to the refusal to execute, by conducting an independent examination of the conditions and guarantees provided for in Article 4a(1) of the Framework Decision. That independent review carried out by the executing authority must be ensured in the light of the autonomous content of the clear and common guarantees set forth by the exceptions to the optional ground for non-recognition in Article 4a.
30. It must be emphasised that the role of independent review carried out by the executing authority is limited to verifying the legal classification (points 3.1.b, 3.2 or 3.3 of the form) of the facts as presented by the issuing authority (point 4 of the form). Contrary to the arguments put forward at the hearing by the Netherlands Government and the United Kingdom Government, that does not mean that the executing authority may dispute the facts established by the issuing authority. It follows from the principle of mutual trust — and it is also in the interest of procedural economy in judicial matters — that the executing authority is bound by the facts presented by the issuing authority.
31. As regards the practical consequences flowing from the guarantees provided for in the second part of the alternative set out in Article 4a(1)(a)(i) of the Framework Decision, it may be concluded that, notwithstanding that the issuing authority has indicated in point 3 of the European arrest warrant form that the person concerned who was not summoned in person was actually informed officially by other means, it remains open to the executing authority to ascertain whether those particular common conditions set out in that provision are satisfied, in the light of the information provided by the issuing authority in point 4 of the form.
32. It thus follows from the system conceived by the Framework Decision in its practical application that the exceptions set out in Article 4a(1)(a)(i) of the Framework Decision are autonomous guarantees that set out the minimum conditions prescribed by EU law, compliance with which is verified by the executing authorities. In that sense, those requirements were defined in the Framework Decision in a manner that is autonomous and common to the Member States.
33. Thus, the existence of the autonomous and common guarantees laid down in Article 4a(1)(a) to (d) of the Framework Decision is precisely what makes possible the establishment by Article 4a of a system favouring mutual recognition, while respecting the rights of the defence. It is in the light of those two objectives that the Framework Decision defines the legal consequences of the procedural acts of the Member States without, however, prescribing actual procedural methods.
34. Indeed, it is clear from the wording of the Framework Decision and from the recitals of Framework Decision 2009/299 that the system put in place by EU law concerning the application of the principle of mutual recognition of decisions delivered in absentia is not intended to harmonise the procedural rules of the Member States. In the first place, the reference to ‘further procedural requirements’ in Article 4a(1) of the Framework Decision indicates that that provision envisages only a minimum procedural content that must be supplemented by national procedural law. (11) In the second place, recital 4 of Framework Decision 2009/299 makes clear that that framework decision is ‘not designed to regulate the forms and methods, including procedural requirements, that are used to achieve the results specified in this Framework Decision, which are a matter for the national laws of the Member States’. (12)
35. It follows that the procedural methods, in particular those relating to the service or notification of procedural acts, continue to be governed by national law, in accordance, moreover, with the principle of the procedural autonomy of the Member States and the legal nature of the framework decisions. Also, Article 4a(1) of the Framework Decision lays down only minimum requirements expressed in the form of factual conditions that must be satisfied and leaves the choice of the procedural methods to national law.
36. Consequently, the answer to the first question should be that Article 4a(1)(a)(i) of the Framework Decision must be interpreted as meaning that it contains autonomous minimum guarantees compliance with which must be verified independently by the executing judicial authority with a view to executing a European arrest warrant issued for the purpose of executing a decision handed down where the person concerned did not appear in person at his trial.
B – Second question
37. By its second question, the referring court asks the Court to rule, in the first place, on the interpretation that should be given generally to the concepts contained in Article 4a(1)(a)(i) of the Framework Decision. In the second place, the referring court asks the Court whether a situation such as that in the present case comes within one of the two situations referred to in that provision. After setting out some considerations of a general nature, I shall examine the particular features of the situations referred to in the provision at issue by reference to the circumstances of the present case.
1. General considerations
38. The fundamental importance, in EU law generally and in the scheme of the Framework Decision in particular, of the principle of mutual trust and the closely linked principle of mutual recognition is not in doubt. (13) The Court has recalled on many occasions that the principle of mutual recognition, which is the ‘cornerstone’ of judicial cooperation, means in particular that Member States are in principle obliged to give effect to a European arrest warrant. (14) Consequently, the Member States can refuse to execute such a warrant only in the mandatory or optional cases of non-execution listed exhaustively in Articles 3 to 4a of the Framework Decision. Furthermore, the execution of a European arrest warrant may be made subject to only one of the conditions exhaustively laid down in Article 5. (15) Thus, even though the Member States have a certain margin of discretion when transposing those provisions into their domestic law, they cannot extend the scope of those provisions beyond that which derives from a uniform interpretation. (16)
39. As regards Article 4a(1) of the Framework Decision, 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 Framework Decision 2002/584, 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. (17)
40. However, the existence of grounds for non-execution demonstrates that the principle of mutual recognition does not impose an absolute obligation to execute the European arrest warrant. (18) In particular, Article 4a of the Framework Decision constitutes a ground for non-execution that is expressly linked with the rights of the defence during a trial which has resulted in the imposition of a sentence in absentia. (19) In that context, Article 4a(1) of the Framework Decision lays down autonomous requirements for the protection of the rights of the defence which ensure that the arrest warrant is executed even where the person concerned has not appeared at his trial. Thus, although Framework Decision enabled a definite development in the direction of mutual recognition, that development was made possible by the integration of the minimum and autonomous essential guarantees established by EU law.
41. Consequently, the principle of mutual recognition cannot in itself serve as a guide for the interpretation of Article 4a(1)(a) of the Framework Decision, since that provision is an exception to the possibility of applying a ground for non-execution the existence of which is expressly linked to respect for fundamental rights. Also, the specific features of that particular provision must determine its interpretation.
42. In the first place, it is common ground that the provision in question describes in detail certain factual conditions that must be satisfied.
43. In the second place, it cannot be overlooked that that provision belongs to the specific field of criminal law, which means that enhanced guarantees are therefore required. (20)
44. In the third place, that provision is intimately linked with the fundamental rights consisting in the rights of the defence and the right to an effective judicial remedy, set out in Articles 47 and 48 of the Charter of Fundamental Rights of the European Union (‘the Charter’).
45. In that regard, as the Commission claims, Article 4a(1)(a)(i) must be interpreted before all else by reference to the objective of respect for the rights of the accused, while improving the mutual recognition of judicial decisions. (21) The aim of protecting the rights of the accused is also clear from recitals 1 and 8 of Framework Decision 2009/299, which express the intention to establish a system consistent with the case-law of the European Court of Human Rights.
46. According to that case-law, the right to appear — which derives from the object and purpose of Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘ECHR’) taken as a whole (22) — is not absolute and, on certain conditions, the accused may waive of his own free will, either expressly or tacitly, but in an unequivocal manner, the right to appear. Thus, it has been held that a procedure taking place in the absence of the accused is not in itself incompatible with Article 6 of the ECHR. That is particularly so where the accused may subsequently obtain a new judicial decision after being heard and where it has been established that he waived his right to appear at the trial and defend himself or that he was seeking to evade justice. (23)
47. The Court has already had occasion to rule on the compatibility of the system defined in Article 4a of the Framework Decision with Articles 47 and 48 of the Charter. In the judgment in Melloni, the Court observed that the EU legislature found a solution consisting in providing an exhaustive list of the circumstances in which the execution of a European arrest warrant issued in order to enforce a decision rendered in absentia must be regarded as not infringing the rights of the defence. (24)
48. The general objective of the Framework Decision — namely to facilitate and accelerate judicial cooperation (25) — must therefore be weighed against the specific objective of respect for the right of the accused to appear in person at the trial, which underpins Article 4a, introduced by Framework Decision 2009/299.
49. All in all, for the three reasons set out above, it is not possible to rely, as the Netherlands Government does, on an argument based on the practical effect of the Framework Decision viewed solely from the aspect of improving mutual recognition. Such an argument cannot be put forward to the detriment of the rights of the defence in criminal proceedings, even if that were to lead to a situation in which execution of the arrest warrant would have to be refused.
50. In answer to the first part of the second question submitted by the Rechtbank Amsterdam (District Court, Amsterdam), I consider that, for the purposes of the interpretation of the common guarantees contained in Article 4a of the Framework Decision, it is appropriate to give that provision a literal interpretation that fully recognises the role played by fundamental rights.
2. ‘Summons in person’ and ‘information’ ‘received … by other means’
51. The second part of the second question seeks to ascertain whether a situation such as that in the main proceedings satisfies the requirements of Article 4a(1)(a)(i) of the Framework Decision.
52. According to the Netherlands Government, the Polish Government and the United Kingdom Government, the requirements of Article 4a(1)(a)(i) of the Framework Decision are satisfied in the present case. The Commission, on the other hand, maintains that the second alternative provided for in that provision requires that the person concerned was actually aware of the date and place of the trial, which in its submission cannot rest on a legal fiction. The Commission therefore maintains that it is not apparent from the information supplied by the issuing judicial authority that it has been established in an unequivocal manner that the person concerned was aware of the scheduled place and date of the trial. Mr Dworzecki claims that it is not apparent from the reasons stated by the issuing authority that the conditions laid down in Article 132 of the Polish Code of Criminal Procedure were even satisfied.
53. It should be observed, by way of preliminary point, that it is solely for the national court to evaluate the factual evidence before it. It must be borne in mind, however, that, as the Netherlands and Polish Governments have submitted, in a situation such as that in the main proceedings, where an executing court considers that the information supplied by the issuing Member State is inadequate, it must ask the issuing judicial authority to forward to it, as soon as possible, supplementary information, (26) in accordance with Article 15(2) of the Framework Decision. (27)
54. In that context, my examination will identify the criteria that may be derived from Article 4a(1)(a)(i) of the Framework Decision for the purpose of enabling the referring court to assess the circumstances of the present case.
55. Article 4a(1)(a)(i) of the Framework Decision refers clearly to two situations: the person concerned must either have been ‘summoned in person’ or have ‘by other means actually received official information …’. Recital 7 of Framework Decision 2009/299 and the actual structure of the form annexed to that Framework Decision confirm that distinction.
56. According to the first part of the alternative, the person concerned must have been summoned in person and have thus been informed of the scheduled date and place of the trial. As is apparent from the wording of Article 4a(1) of the Framework Decision, the subject of the summons in person is without question the person concerned.
57. Thus, the fact that the determination of the procedural methods of the summons is a matter for the Member States does not suffice for the concept of ‘summons in person’ to be interpreted as resting on a fiction, namely that notification to a person other than the person concerned might be deemed to be a summons in person.
58. As the Commission, the Netherlands Government and the Polish Government have submitted, an indirect summons cannot count as a summons in person. Not only would that run counter to the normal use and meaning of the expression in both everyday language and legal language (which entails that the summons in person has been effected ‘directly’), but, as the Polish Government has claimed, it would also be inconsistent with Article 4a(1)(a)(i) of the Framework Decision, which envisages a second situation, in which the information may be provided ‘by other means’.
59. Last, it is clear that the burden of proving that a summons in person was indeed effected is borne by the authorities of the issuing Member State. Consequently, as the Commission claims, the Polish issuing judicial authority was correct to tick the box corresponding to point 3.1.b of the form, since it did not consider, in the main proceedings, that the person concerned had been summoned in person.
60. The second part of the alternative set out in Article 4a(1)(a) of the Framework Decision refers to the situation in which the person concerned has ‘by other means actually received official information of the scheduled date and place of the trial in such a manner that it was unequivocally established that he or she was aware of the scheduled trial’.
61. The wording of that provision clearly states that an unambiguous factual result is required.
62. The specific guarantees provided in that provision thus relate to the methods whereby the information is received (the information must be official and not merely circumstantial or informal), its terms (it must include the date and place of the trial) and its result (the person concerned must be actually informed, in such a manner that the fact that he was made aware of the scheduled trial was established unequivocally).
63. All of those conditions must therefore be satisfied cumulatively. Thus, the fact that the person concerned was ‘aware’ of the trial does not dispense with the need actually to provide official information of the date and place of the trial.
64. In addition, there can be no doubt, as the Netherlands Government acknowledged at the hearing, that the burden of proving that the person concerned actually received official information is borne by the authorities of the issuing Member State. Last, as is apparent from the observations submitted by the Commission at the hearing, that second part of the alternative is subject to even more stringent requirements as regards the result to be achieved in that it offers numerous possibilities as to the means of achieving that result.
65. The Member States which have submitted observations in the present case took the view that the requirements of Article 4a(1)(a)(i) of the Framework Decision were satisfied in the present case owing to Mr Dworzecki’s failure to exercise diligence and also to the information contained in the arrest warrant, indicating that Mr Dworzecki ‘pleaded guilty and accepted in advance the punishment suggested by the prosecutor’.
66. In order to arrive at that conclusion, those Member States rely exclusively on recital 8 of Framework Decision 2009/299, which, in referring to the case-law of the European Court of Human Rights, states that ‘when considering whether the way in which the information is provided is sufficient to ensure the person’s awareness of the trial, particular attention could, where appropriate, also be paid to the diligence exercised by the person concerned in order to receive information addressed to him or her’. According to the United Kingdom Government, that recital demonstrates the legislature’s desire not to go further than the level of protection guaranteed by the European Court of Human Rights. In the Commission’s submission, on the other hand, recital 8 is the expression of a compromise between the Member States, whereby the ground for refusal at issue was indeed conceived as an optional ground, but did not entail a reduction of the guarantees provided for in Article 4a(1)(a)(i) of the Framework Decision.
67. I do not share the view of the United Kingdom Government. The wording of Article 4a(1)(a)(i) of the Framework Decision does not provide for any derogation from the requirement that the person concerned actually received official information of the scheduled date and place of the trial where he or she was to a certain extent made aware of the trial by means that do not satisfy the requirements of that provision. Thus, the interpretative value of recital 8 is not at issue. Since Article 4a(1) of the Framework Decision lays down an optional ground for refusal, the executing authorities might possibly still surrender the person concerned if the situation at issue does not come within any of the situations which it lists in subparagraphs (a) to (d) of that article. In fact, as the Commission correctly emphasises, the Member States would then be required to comply with the requirements set out in the ECHR, in accordance with what emerges from recitals 8 and 15 of Framework Decision 2009/299.
68. As the Commission submits, the information that Mr Dworzecki had ‘pleaded guilty and accepted in advance the punishment suggested by the prosecutor’ provides no indication as to the date or place of the trial and implies no waiver of the right to appear.
69. In that regard, it should be observed that the European Court of Human Rights has held that ‘to inform someone of a prosecution brought against him is a legal act of such importance that it must be carried out in accordance with procedural and substantive requirements capable of guaranteeing the effective exercise of the accused rights and … vague and informal knowledge cannot suffice’. (28) Thus, the case-law of the European Court of Human Rights, which is necessarily casuistic, provides examples where speculation about private communications or unofficial information has not been considered to satisfy the guarantees of adequate awareness. (29) Likewise, where notification is made to another person (for example, a lawyer) in accordance with national law, particular diligence is required in order to ensure that the person concerned has waived his right to appear at the trial. (30)
70. Admittedly, the case-law of the European Court of Human Rights does not preclude that certain proven facts may unequivocally show that the accused was aware that criminal proceedings were pending and that he did not intend to appear at his trial or intended to evade prosecution. (31) As the Commission observes, however, in the absence of a summons in person, it cannot be inferred from the fact that the person concerned failed to appear at the trial that he or she waived the right to appear. (32) Likewise, lack of diligence on the part of the person concerned does not necessarily entail waiver of his right to appear. (33) On the contrary, an enhanced level of diligence is required of the national courts where the accused was not summoned in person. (34)
71. In any event, the requirements contained in Article 4a(1)(a)(i) of the Framework Decision ensure respect for the rights set forth in Articles 47 and 48 of the Charter. Although, 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, that does not prevent EU law from affording wider protection under Article 52(3) of the Charter.
72. The Court has considered, in various contexts, that the right of the accused to appear in person at his trial is not absolute. (35)
73. As regards the right to an effective remedy and to a fair trial provided for in Article 47 of the Charter and the rights of the defence guaranteed in Article 48(2) of the Charter, the Court stated in its judgment in Melloni that the situation referred to in Article 4a(1)(a) of the Framework Decision lays down ‘the circumstances in which the person concerned must be deemed to have waived, voluntarily and unambiguously, his right to be present at his trial, with the result that the execution of a European arrest warrant issued for the purposes of executing the sentence of a person convicted in absentia cannot be made subject to the condition that that person may claim the benefit of retrial at which he is present in the issuing Member State’. (36) It follows that, in the specific context of the Framework Decision, there is no breach of the right to a fair trial when, in particular, the accused was informed of the date and place of the trial even though he did not appear in person. (37)
74. It is thus clear from the wording of Article 4a(1)(a)(i) of the Framework Decision that, on this particular point, EU law ensures a higher level of protection than the ECHR in that it lays down an express guarantee in relation to the result of notification which must thus contain information on the date and place of the trial. A general awareness that criminal proceedings are in progress does not satisfy the conditions of that provision.
75. Thus, the exceptions to the option to refuse to execute a European arrest warrant provided for in Article 4a(1) of the Framework Decision are based on clear and precise requirements which guarantee a high level of protection precisely because they entail the mandatory execution of the European arrest warrant where a decision has been delivered in absentia.
76. To conclude, it should be borne in mind that, from a systematic viewpoint, the application of Article 4a(1)(a) of the Framework Decision entails a presumption that the right of the accused to appear has been waived and, unlike subparagraph (d) of that provision, does not guarantee him or her a right to a retrial or a right of appeal.
77. As has already been emphasised, it is for the referring court to assess, on the basis of the factual evidence before it and in accordance with the criteria set out above, whether it has been unequivocally established that Mr Dworzecki was made aware in due time of the trial by having actually received official information of the scheduled date and time of the trial. However, in order to provide a helpful answer to the referring court, and subject to supplementary information received in accordance with Article 15(2) of the Framework Decision, it seems to me that a summons effected in the way described in the second question cannot be regarded as satisfying the condition that the person concerned must have ‘by other means actually received official information’ within the meaning of Article 4a(1)(a)(i) of the Framework Decision, in so far as it cannot be unequivocally established that the summons was actually passed on to the requested person.
78. Nonetheless, it should be observed that the different situations referred to in subparagraphs (a) to (d) of Article 4a(1) of the Framework Decision constitute a normative framework which functions as a coherent system. Accordingly, if surrender cannot be granted on the basis of subparagraph (a), it is still possible to rely on another circumstance which enables the rights of the defence to be respected while guaranteeing the right to a remedy or to a retrial.
79. Thus, the Polish Government has explained that its internal legal order provides for the possibility of requesting a retrial. That factor, as the Commission observes, might possibly lead the issuing court to consider that the conditions of Article 4a(1)(d) of the Framework Decision are satisfied in the present case.
80. Last, it should also be noted, for information, that Article 4a(1) and recital 6 of Framework Decision 2009/299 state that the conditions in question are alternative. There is nothing to prevent the issuing authority from indicating that a number of conditions are satisfied simultaneously, since those conditions cannot be regarded as mutually exclusive. Such more exhaustive information would thus facilitate mutual recognition and the speed of cooperation.
81. In conclusion, it follows from the wording of the provision at issue and also from the general scheme and the purpose of the Framework Decision that the application of Article 4a(1)(a)(i) of the Framework Decision requires that the person concerned has been summoned directly in person or, if not, that it is unequivocally established that he was aware of the scheduled trial as a result of having actually received official information of the scheduled date and place of the trial.
VI – Conclusion
82. In the light of the foregoing considerations, I propose that the Court of Justice should answer the questions submitted by the Rechtbank Amsterdam (District Court, Amsterdam) as follows:
(1) Article 4a(1)(a)(i) 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 contains autonomous minimum guarantees compliance with which must be verified independently by the executing judicial authority with a view to executing a European arrest warrant issued for the purpose of executing a decision handed down where the person concerned did not appear in person at his trial.
(2) Article 4a(1)(a)(i) of Framework Decision 2002/584, as amended by Framework Decision 2009/299, must be interpreted as meaning that the person concerned must have been summoned, according to the national procedural rules applicable, directly in person or, if not, that it must be unequivocally established from the information provided by the issuing authority that he was aware of the scheduled trial as a result of having actually received official information of the scheduled date and place of the trial.