Request for a preliminary ruling from the Corte suprema di cassazione (Italy) lodged on 23 January 2024 – Criminal proceedings against GE
(Case C-40/24, Derterti) 1
Language of the case: Italian
Referring court
Corte suprema di cassazione (Italy)
Party to the main proceedings
GE
Questions referred
Must Article 6 of the Treaty on European Union be interpreted as meaning that the right of the accused to technical defence in a criminal trial is included among the rights enshrined in the Charter of Fundamental Rights of the European Union of 7 December 2000 and the fundamental rights guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and resulting from the constitutional traditions common to the Member States of the European Union, which that Article 6 recognises as general principles of EU law, and with which Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, 1 requires compliance?
If so, can the right of the accused person to technical defence in a criminal trial nevertheless be regarded as respected where the judgment imposing a sentence was handed down against an accused person who was absent and not assisted by a lawyer, either of his own choosing or appointed by the court hearing the action, although subject to the right of that accused person, once surrendered, to obtain a retrial with the safeguards for the rights of defence?
Consequently, must Article 4a of Council Framework Decision 2002/584/JHA, inserted by Council Framework Decision 2009/299/JHA of 26 February 2009, 1 be interpreted as meaning that the requested State of surrender has the power to refuse to execute a European arrest warrant issued for the purpose of executing a custodial sentence or a detention order if the person concerned did not appear in person at the trial resulting in the decision, even if the conditions laid down in paragraph (1)(d) of that Article 4a are satisfied, but the person concerned was not assisted by a lawyer, appointed by him or by the court hearing the action of its own motion.
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1 The name of the present case is a fictitious name. It does not correspond to the real name of any party to the proceedings.
1 OJ 2002 L 190, p. 1.
1 Council Framework Decision 2009/299/JHA of 26 February 2009 amending Framework Decisions 2002/584/JHA, 2005/214/JHA, 2006/783/JHA, 2008/909/JHA and 2008/947/JHA, thereby enhancing the procedural rights of persons and fostering the application of the principle of mutual recognition to decisions rendered in the absence of the person concerned at the trial (OJ 2009 L 81, P. 24).