Melloni as a Wake-up Call – Setting Limits to Higher National Standards of Fundamental Rights’ Protection
By Vanessa Franssen
I plead guilty: this post on the Melloni ruling of the CJEU should have been written long ago. However, instead of invoking attenuating circumstances, I prefer to draw your attention to the reasons why a blog post on this case still is highly relevant today. First, Melloni is a true landmark case with respect to the relation between EU and national standards of fundamental rights in the field of criminal justice. Central issue in this case was whether Member States are still allowed to impose a higher level of fundamental rights’ protection for cross-border cooperation in criminal matters than the standard set by EU law. Second, Melloni has become ‘hot’ again thanks to the recent follow-up judgment of the Spanish Constitutional Court, which shows the real impact of the CJEU’s ruling and which will be discussed in a separate post by M. García García.
What made Mr Melloni’s case so special? Mr Melloni is an Italian businessman who was prosecuted for bankruptcy fraud and tried to escape the administration of justice in his home country by hiding in Spain. In 1996, Italy requested Spain for his extradition (i.e., under the old rules of extradition), but Melloni escaped as soon as he was released on bail by the Spanish authorities. Hence, although he was well aware of the time and place of the trial in his home country, he preferred not to attend it personally. Instead, he sent his lawyers, who defended and represented him during the entire criminal process, all the way up to the Italian Supreme Court.
Melloni was found guilty and sentenced to 10 years of imprisonment. As soon as the conviction became final in 2004, Italy issued a European arrest warrant ordering Spain to surrender Melloni. In August 2008, the Spanish police finally managed to arrest him. Not surprisingly, Melloni opposed his surrender. His main argument was that, if he were to be surrendered, he would not be entitled to a retrial in Italy, despite the fact that he had been convicted in his absence. The Audiencia Nacional rejected this argument and held that Melloni’s rights of defence had not be violated, even though he was not physically present at his trial. Melloni knew perfectly well that his trial in Italy would be taking place but deliberately chose not to attend it. Besides, he was represented by his lawyers during the entire criminal proceedings. Thereupon, the Court decided to authorise the surrender.
Nevertheless, Melloni was not yet willing to give in and applied to the Spanish Constitutional Court, invoking the right to a fair trial as safeguarded by Art. 24(2) of the Spanish Constitution. According to previous case law of the Constitutional Court, the right to a fair trial in the Spanish Constitution requires that, if a person has been convicted in his absence, a surrender for the execution of that conviction must be made conditional on the right to challenge the conviction in order to safeguard that person’s rights of defence, even if he had given power of attorney to a lawyer who effectively represented him at the trial (paras 20 and 22). By contrast, Article 4a(1) of Framework Decision on the European Arrest Warrant 2002/584/JHA (‘FD EAW 2002’) as amended by Framework Decision 2009/299/JHA (‘FD EAW 2009’) only allows the Executing State to refuse the surrender or to make it conditional on the right to a retrial in a limited number of situations. If the person convicted in his absence was defended and represented by a lawyer, the Executing State cannot refuse to surrender (Article 4a(1)(b)). In the light of the conflict between its own case law and the EU legal framework, the Constitutional Court (in Plenary Chamber) clearly struggled with Melloni’s petition, and in 2011 decided to ask the CJEU for a preliminary ruling.
Preliminary Issue: Changing EU Legislation
A first aspect the CJEU had to deal with was the admissibility of the Spanish Court’s request for a preliminary ruling. Some parties (most likely Melloni, but also the Spanish public prosecutor) argued that the request was inadmissible because the questions of the referring court were based on the assumption that Article 4a(1) FD EAW, as inserted by FD EAW 2009, was applicable to Melloni’s case. In their view, this new provision could, however, not be applied since the authorisation of the Audiencia Nacional dated from 2008 (paras 25 and 27). Instead, the Spanish Court should apply (former) Article 5(1) FD EAW 2002, on the basis of which Italy had issued the EAW and which applied at the moment of the Spanish authorisation. This distinction between both provisions is important because the possibilities for a conditional surrender regarding convictions in absentia were broader under the old provision, leaving the Spanish Constitutional Court just enough leeway to continue the line of reasoning of its earlier case law. In short, the CJEU first had to decide on the application ratione temporis of EU law in view of the changes made in 2009.
According to the CJEU, Article 4a(1) FD EAW contains procedural rules and is therefore of immediate application ‘to all proceedings pending at the time when they enter into force’. The entry into force of FD EAW 2009 was 28 March 2011, i.e., the implementation deadline for the Member States. Whether the FD EAW 2009 has effectively been transposed into the national law of the Executing States, is apparently not a relevant criterion in this case. Why not? Even though framework decisions do not entail direct effect (former Article 34(2)(b) TEU), it follows from the Court’s Pupino case law that the loyalty principle obliges Member States to interpret national law (including their national constitution) as much as possible in conformity with the framework decision (Pupino, paras 42-43). The only limits to such interpretation are set by general principles of law, such as the principle of legal certainty and non-retroactivity (Pupino, para. 44). However, the retroactive application of procedural rules is not considered to violate the principle of legal certainty as laid down in Article 49(1) EU Charter and Article 7 ECHR.
A Harmonised Definition of Convictions in Absentia
Once the request declared admissible, the CJEU could proceed to answering the actual questions raised by the Spanish Constitutional Court. First of all, the national court wanted to know if the optional ground for refusal in case of a conviction in absentia as laid down in the new Article 4a(1) FD EAW precludes the Executing State from making the surrender conditional on the right of a retrial in the Issuing State, if deemed necessary by the Executing State, similar to what used to be possible on the basis of Article 5(1) FD EAW 2002.
As Advocate General Bot highlighted in his opinion (paras 68-69), experience with Article 5(1) FD EAW 2002 had, however, learnt that the execution of an EAW was quite uncertain due to differences in national definitions of ‘convictions in absentia’ and the ensuing right to a retrial. In order to eliminate national diversity and to facilitate mutual cooperation and recognition in criminal matters, the EU legislator decided to abolish Article 5(1) and to add Article 4a(1) in 2009.
Article 4a(1) FD EAW encompasses a well-confined ground of refusal regarding persons convicted in their absence, ruling out any margin of discretion for the Executing State. According to this new provision, the Executing State may refuse the surrender of persons sentenced in their absence, but not (a) if they were informed of the date and place of their trial and voluntarily waived the right to attend the trial, knowing this might lead to a conviction in their absence, neither (b) if they were defended and represented at the trial by a lawyer, whether appointed by the accused or by the State. The fact that the national law of the Executing State might still consider these situations as convictions in absentia triggering the right to a retrial, is irrelevant. It is worth noting that Article 4a(1) FD EAW is basically a codification of the case law of the European Court of Human Rights (‘ECtHR’) (see e.g. Sejdovic v. Italy and Dilipak and Karakay v. Turkey).
Based on a literal and teleological interpretation of Article 4a(1), the CJEU comes to a firm answer: the Executing State cannot make the surrender conditional on the right to a retrial, except in the situations specified in Article 4a(1) FD EAW. In other words, the EU definition of what a conviction in absentia is and which conditions apply for a retrial of persons sentenced in their absence are not only binding but also limitative. When applied to Melloni’s situation, the FD EAW thus leaves Spain with no possibility to refuse his surrender. But, perhaps the FD EAW is not entirely in conformity with higher EU norms?
Conformity with the EU Charter
Second, the referring court indeed questioned the CJEU whether the above interpretation of Article 4a(1) FD EAW is in conformity with the right to a fair trial and to an effective remedy in Article 47 EU Charter, as well as with the rights of defence granted by Article 48(2) EU Charter.
In its answer, the CJEU explicitly refers to the case law of the ECtHR and stresses that, although the right of the accused to be present at his trial is an ‘essential component of the right to a fair trial, that right is not absolute’ (para. 49). The accused may prefer to be represented by a lawyer or may waive his right to attend the trial altogether. If that is his own free and unequivocal choice, he is not entitled to a right to a retrial. In other words, just like the ECtHR, the EU legislator balances the importance of the presence of the accused at the trial against his right to be defended by a lawyer and also endows the accused with a certain amount of self-determination. In sum, Article 4a(1) FD EAW is perfectly in line with the requirements of the EU Charter.
National Margin for More Safeguards?
Third and finally, the Spanish Court comes to the most crucial question: is there any room for the Executing State, based on Article 53 EU Charter, to grant more extensive fundamental rights to the accused than the ones afforded by EU law? Article 53 EU Charter states that ‘[n]othing in this Charter shall be interpreted as restricting or adversely affecting human rights and fundamental freedoms as recognized (…) by Union law and international law (…), including the [ECHR] and by the Member States’ constitutions.’ Hence the question whether Article 53 EU Charter gives Member States the option to go further than the rights granted by EU law if their constitution requires so, and if needed, to give priority to their national law.
The CJEU’s answer is crystal clear: such an interpretation of Article 53 EU Charter would undermine the effectiveness of EU law and violate the principle of primacy of EU law. If Spain would be allowed to follow its national constitution, persons sentenced in their absence could simply not be surrendered, unless the Issuing State offers the possibility of a retrial. As said above, the FD EAW 2009 was precisely aimed at making the mutual recognition of decisions rendered in absentia easier, and all Member States, including Spain, approved those new rules. Whenever the EU legislator harmonises the fundamental rights in a certain area in an exhaustive way, the Member States are no longer allowed to require a higher standard of procedural safeguards, even on the basis of their national constitution. In those cases, the EU decides which level of fundamental rights’ protection is adequate as it strikes a balance between those rights on the one hand, and the effectiveness of EU law and mutual cooperation on the other.
Does this mean that EU Member States can never set higher national standards of fundamental rights in all situations governed by EU law (cf. CJEU, Åkerberg Fransson)? Of course not. In accordance with settled case law of the CJEU in other areas of EU law, Member States can still go beyond what is required by EU law, but only to the extent that the subject matter has not been completely regulated by the Union. Therefore, the Melloni ruling should be a wake-up call for the Member States in the field of EU criminal justice. As was discussed in Huysmans’ post on this blog, EU secondary legislation regarding procedural safeguards is very often a result of the Member States’ lowest common denominator and that usually comes close to the minimum standard of the ECtHR. Melloni shows that this approach can have a significant impact on national procedural safeguards. What is more, under the Lisbon Treaty, unanimity is no longer required. So even Member States which did not vote in favour of the adopted legislation will be bound by the EU fundamental rights’ standard in that area.
Admittedly, in Melloni’s case little harm seems to be done. After all, he was consistently defended and represented at the trial by his lawyers. But next time things might turn out worse.
 N. De Boer, “Addressing rights divergences under the Charter: Melloni”, Case note on Case C-399/11, 50 CML Rev. 1083 (2013), 1088.