By Mario García
On 13 February, the Spanish Constitutional Court (“SCC” or the “Court”) handed down its awaited judgment in the Melloni case (STC 26/2014). The case concerned the problematic issue of differing levels of protection of fundamental rights at national and European levels in relation to the execution of a European Arrest Warrant (“EAW”). This affair was the source of the SCC’s first-ever preliminary reference to the Court of Justice of the European Union (“CJEU”). Following the CJEU’s ruling last year (Melloni, Case C-399/11, 26 February 2013), which has already been covered in this blog by V. Franssen, the SCC has now agreed to lower the degree of protection afforded by the Spanish Constitution in line with EU law.
Under Spanish constitutional case law, the Spanish authorities ‘indirectly’ violate the Constitution if they give effect to a foreign authority’s decision that infringes the ‘absolute content’ of a fundamental right. This ‘absolute content’ is defined as the unalienable core of the right, inherent to the dignity of the person. In order to ascertain the absolute content of fundamental rights, human rights treaties ratified by Spain must be taken into account, pursuant to Article 10(2) of the Spanish Constitution.
From the year 2000, the SCC established that the absolute content of the right to a fair trial (Article 24(2) of the Constitution) included the right to be physically present at the hearing in criminal proceedings related to serious offences. According to the SCC, this entailed that, in extradition cases, people convicted in their absence had to be granted the possibility to challenge their conviction when they were surrendered to the requesting State, even if they had been properly summoned and represented at trial by a lawyer of their choice. This doctrine was reiterated in later judgments and applied to surrender procedures between EU Member States (see STC 177/2006 and STC 199/2009).
However, this reasoning seemed to be at odds with Article 5(1) of the Council Framework Decision 2002/584/JHA, of 13 June 2002, on the EAW (the “FD”). This provision allowed Member States to subject the execution of an EAW to the condition that the person had the opportunity to apply for a retrial, but only “if the person concerned ha[d] not been summoned in person or otherwise informed of the date and place of the hearing which led to the decision rendered in absentia.” Notwithstanding this, the SCC case law seemed to read this nuance out of Article 5(1) FD and interpreted the Spanish law executing the FD in light of its own doctrine on the matter.
The FD was amended in 2009 to repeal Article 5(1) and to include a new Article 4a. This new provision, which has been in force since 28 March 2011, establishes in para. 1 that the executing judicial authority may only refuse to execute the EAW “issued for the purpose of executing a custodial sentence” if the person did not appear in person at the trial, unless the EAW states that the person was informed of “the scheduled date and place of the trial”, and “was informed that a decision may be handed down if he or she does not appear for the trial”; or “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.”
The facts and the CJEU’s preliminary ruling
Mr Melloni was convicted in absentia to a ten-year sentence for bankruptcy fraud by Italian courts. On 8 June 2004, the Italian authorities issued an EAW for his surrender. Mr Melloni was apprehended by the Spanish police in 2008. By order of 12 September 2008, the Audiencia Nacional decided to surrender the convict to the Italian authorities without imposing the condition of a retrial. Then, Mr Melloni filed a constitutional petition before the SCC, claiming that his right to a fair trial had been violated.
Confronted with these facts, the SCC realised that if it decided to simply uphold its previous case law, the Spanish Constitution would clearly be in conflict with Article 4a(1) FD as amended in 2009. Thus, the SCC decided to reconsider the implications of its doctrine in relation to EU law.
By order of 9 June 2011 (ATC 86/2011), the SCC sent its preliminary reference to the CJEU. The content of this order and the CJEU’s ruling has already been commented on in a separate post in this blog. So I only offer a brief reminder.
The order contained three questions: (i) whether Article 4a(1) FD must be interpreted as prohibiting Member States from making the execution of an EAW subject to the possibility of retrial in cases where a conviction has been rendered in absentia; (ii) whether Article 4a(1) FD is valid in light of Articles 47 and 48 of the EU Charter of Fundamental Rights; and (iii) whether, under Article 53 of the Charter, it can grant a higher level of protection than that provided for under EU law.
In its judgment of 26 February 2013, the CJEU responded to the first two questions in the affirmative, and clarified that Article 53 of the Charter only allows national authorities to apply higher standards of protection of fundamental rights where an EU legal act calls for national implementing measures, but not where, as in this case, the EU legal act harmonises the law between the Member States. As a result, the SCC could not subject the execution of an EAW under EU law to higher levels of protection than those already provided for by the FD.
The SCC’s judgment
The SCC rendered its final judgment in the Melloni case on 13 February 2014. The Court voted unanimously (11-0) to change its doctrine to square it with EU law. There were, though, three concurring opinions.
A) The majority opinion
The majority opinion, written by Justice Encarnación Roca, is not remarkably lengthy for an SCC decision; its ‘Legal Reasoning’ section has 4 parts, the first one being introductory. Part 2 of the Legal Reasoning section recalls that the SCC had referred three questions to the CJEU. After summarising the CJEU’s decision, the judgment notes that the response of the EU Court will be “of great utility” in determining the absolute content of the fundamental right to a fair trial as protected by the Constitution.
In part 3, the SCC states that it “must, however, complete” the CJEU’s response with its own general doctrine on the relationship between the Spanish Constitution and EU law, as set out in SCC Declaration 1/2004. This 2004 Declaration scrutinised the constitutionality of the Draft Constitutional Treaty and seems equally applicable to the Lisbon Treaty, given their similarity.
According to the 2004 Declaration, which is thoroughly quoted in the Melloni judgment, under Article 93 of the Constitution, Spain may transfer the exercise of powers to a supranational organisation, as long as this transfer respects some inherent characteristics of the Spanish legal system, such as the sovereignty of the State, its basic constitutional structures, and the fundamental values and principles guaranteed under the Constitution. In Declaration 1/2004, the SCC concluded that the Draft Constitutional Treaty respected these limits. Furthermore, the SCC found that the primacy of EU law does not go against the supremacy of the Constitution; once the EU legal order is accepted into the Spanish system, and within the competences attributed to the EU, “the Constitution is not the standard of validity of Community law, but the Treaty itself”, and the SCC may not generally control the legality of EU secondary law.
However, the SCC qualified this statement by warning that “in the hardly conceivable case that the future dynamics of European Union law were deemed irreconcilable with the Spanish Constitution, without these hypothetical excesses of European law … being remedied through the ordinary processes provided for [by EU law],” the SCC may need to step up to guarantee “in the last resort the preservation of the sovereignty of the Spanish people and of the supremacy of the Spanish constitution.” Still, in Declaration 1/2004 the SCC accepted that these potential conflicts “from the current perspective seem non-existent.”
In part 4, the Court revisits its doctrine on indirect violations of the fundamental right to a fair trial. The SCC recalls that in the determination of the absolute content of the right both the European Convention on Human Rights (“ECHR”) and the EU Charter must be taken into account.
First, the Court mentions the ECtHR judgment in Sejdovic v. Italy (§ 82 et seq.), where the Grand Chamber explained that there is no violation of Article 6 ECHR if the person freely and unequivocally waives the right to be physically present at the hearing and is defended by counsel at trial.
Second, the Court recalls para. 49 of the CJEU’s Melloni ruling, which, similarly to the ECtHR’s position, stated that the accused may waive that right of his own free will, either expressly or tacitly, “provided that the waiver is established in an unequivocal manner, is attended by minimum safeguards commensurate to its importance and does not run counter to any important public interest”. There is no violation if the accused “was informed of the date and place of the trial or was defended by a legal counsellor to whom he had given a mandate to do so.”
Therefore, in light of European case law, the SCC concludes that the absolute content of the right to a fair trial does not require that a person convicted in absentia has the chance of applying for retrial if the right has been voluntarily and unequivocally waived and the person was duly summoned and defended at trial by counsel. It should be noted that the Court’s holding is limited to indirect violations of the Constitution, related to the execution of a foreign authority’s decision. It is not clear whether this reasoning would apply to internal criminal proceedings if future legal reform in Spain were to allow trials in absentia for serious offences.
Applying this new doctrine to the case at hand, the SCC rejects the constitutional petition brought by Mr Melloni. The petitioner had been properly informed of the trial, had appointed two lawyers of his choosing who represented him through the different stages, and he had voluntarily decided to flee from justice.
The Court does not expressly address the issue as to whether the doctrinal change is motivated by the CJEU’s interpretation of Article 53 of the Charter. Its shift in doctrine is construed as a reinterpretation of Article 24(2) of the Constitution, resulting from the interpretive guidance provided by international treaties and case law.
B) The concurring opinions
Three members of the Court prepared individual concurring opinions. It should be noted that under Spanish law, a member of the Court may write both the majority decision and a personal opinion. Justice Roca, who was the author of the majority ruling, also filed a concurring opinion.
1) Justice Asua’s opinion
Justice Adela Asua celebrates the dialogue initiated between the SCC and the CJEU in this case. She considers the first preliminary reference to be a “landmark in the History of this Court” and points out that this example “has later been followed by other European constitutional courts.” However, she considers that the majority has overlooked an excellent opportunity to reflect on the relationship between the jurisdictional function of the SCC as guarantor of the supremacy of the Constitution and that of the CJEU in the field of fundamental rights. In her view, the Court has failed to address the meaning of Article 53 of the Charter in a systematic way, and she laments that the Court did not mention the CJEU’s Åkerberg Fransson judgment.
Justice Asua also questions the remarks made in part 3 of the Legal Reasoning, which “are totally unnecessary for the resolution of the constitutional petition and are inconsistent with the decision reached.” In her opinion, part 3 seems to cast doubt on the acceptance by the Court of the CJEU’s interpretation of Article 53 of the Charter, although she does not believe this was actually the opinion of the majority. Nonetheless, she warns that if the majority’s intention was to criticise the EU Court’s decision, she is in total disagreement.
Finally, she explains that the legal basis of the decision should have been Article 93 of the Constitution (which is the basis of Spain’s integration in the EU), and not the right to a fair trial as interpreted with the aid of human rights treaties under Article 10(2) of the Constitution. According to Justice Asua, in cases like this, where the Court deals with an area of law that is fully harmonised at the European level, EU law cannot be only an interpretive criterion, but has to be the sole basis of the decision.
2) Justice Roca’s opinion
Justice Encarnación Roca states that the legal basis of the decision should have been the CJEU’s Melloni doctrine, and not a mere reconsideration of the SCC’s case law. This seems to indicate that she believes there was no need to modify the Court’s general doctrine on conditional extraditions, and that a special interpretive criterion should have been created for cases where fundamental rights standards are harmonised by EU law. She explains that once it was verified that the CJEU’s Melloni judgment was not in conflict with any of the Constitution’s material limits to integration, the Court should have applied the common European standard under Article 93 of the Constitution. In her opinion, within the field of application of EU law interpretive standards are fixed by the CJEU, and must then be applied by national courts (including the SCC).
Furthermore, she argues that the EAW is different from ordinary extradition proceedings. The EAW is based on the principle of mutual trust due to the common European culture of human rights that third States do not necessarily share. As a result, she thinks that the majority has left unresolved the issue of what constitutional standards should be applied in cases of extradition to third countries.
Finally, it is interesting to note that, while she considers the remarks made in part 3 of the judgment not to be applicable to this case, she believes those qualifications should be read as implicitly admitting that the CJEU’s Melloni decision does not infringe any constitutional limits.
3) Justice Ollero’s opinion
Justice Andrés Ollero highlights in his opinion that, while Spain is bound under Article 93 of the Constitution as a Member State of the EU, he supports the idea set forth in part 3 that the transference of sovereign powers has material limits. Furthermore, although he concurs with the result in this case, he considers that there was no need to modify of the Court’s doctrine on extradition in cases of convictions rendered in absentia. He believes the decision should have been an exception under Article 93 of the Constitution and limited to the EAW.
Justice Ollero sees this as an unreasoned and significant change in the Court’s doctrine, and asserts that he does not “believe the best way to initiate a seemingly laborious ‘judicial dialogue’ between the Spanish Constitutional Court and the Court of Justice of the European Union, is to unnecessarily give it a sense of a monologue where assent is compulsory.”
The SCC could have implemented the CJEU’s Melloni doctrine in two different ways. On the one hand, the Court could reinterpret Article 24(2) of the Constitution, resorting to international law as an interpretive tool of the content of fundamental rights. This was the position adopted by the majority. On the other hand, it could craft a special interpretive criterion for fundamental rights under Article 93 of the Constitution, making EU law part of the constitutional canon in cases where fundamental rights standards are harmonised at the European level. This alternative was favoured by the concurring opinions.
The first option has a greater effect on the constitutional doctrine on extraditions as it affects both surrender proceedings between EU Member States and extradition to third States. The second approach would have entailed the modification of an important part of the Court’s own case law on the relationship between EU law and the Spanish Constitution, which currently holds that Article 93 of the Constitution does not make EU law part of the constitutional canon (see judgments STC 28/1991 or 41/2002). In addition, although using Article 93 to integrate EU harmonised standards would have avoided any chance of future conflict between EU law and the Constitution, it would also have implied that the meaning of constitutional provisions on fundamental rights would differ depending on whether a case fell within the scope of EU law.
As a result of this judgment, the Court changes its interpretation of the unalienable core of the right to a fair trial, but maintains the basic tenets of its jurisprudence regarding the constitutional relevance of EU law.
Nevertheless, the Court fails to clearly explain why it lowers the constitutional protection of the right to a fair trial. The decision makes it appear as if the doctrinal change had been the result of the ECtHR’s interpretation of Article 6 ECHR and of the CJEU’s reading of Articles 47 and 48 of the Charter. But these provisions alone do not prevent the Spanish Constitution from providing a higher degree of protection. In fact, despite being already aware of the ECtHR judgment in Sejdovic v. Italy, the SCC had still upheld its previous case law in a 2009 judgment. This seems to have been precisely the reason for the SCC, in its preliminary reference, to be interested not only in the correct interpretation of procedural rights in the Charter, but also in whether the Spanish Constitution could provide more safeguards under Article 53 of the Charter. The SCC had hinted that if Article 53 of the Charter allowed a higher level of protection, there would be no need for a doctrinal shift.
However, although in STC 26/2014 the Court reduces the degree of protection afforded by the Constitution, it does not expressly reach this conclusion on the basis of the limits set by the CJEU. Considering the remarks made in part 3 on the material limits to European integration, the lack of reference to Article 53 of the Charter can probably be understood as a deliberate choice on the part of the SCC to withhold express assent to CJEU’s interpretation of this provision. Yet, as Justices Asua and Roca suggested, this does not necessarily mean that the SCC disagrees with the CJEU’s Melloni doctrine. The omission could perhaps be explained as an attempt to avoid losing leverage in its judicial dialogue with the CJEU.
In any event, the Melloni case demonstrates that the CJEU’s interpretation of Article 53 of the Charter may lead to future contention. Conflict may ensue between constitutional courts and the CJEU, especially in cases where the former are required by the latter to decrease the level of protection of fundamental rights afforded by their constitutions.