The 'trial resulting in the decision' as an autonomous concept of EU law for the purposes of the european arrest warrant

• Author: Dra. Patricia Llopis Nadal
• Profession: Associate Professor of Procedural Law at University of Valencia
• Pages: 141-160

141

The “trial resulting in the decision”

as an autonomous concept of EU Law

for the purposes of the european arrest warrant

D. P L N

Associate Professor of Procedural Law at University of Valencia

1. INTRODUCTION

According to the European arrest warrant regulation, decisions that have

been rendered following a trial at which the person did not appear in person

could justify the non-execution of the warrant. Thus, when faced with a decision

adopted in absentia of the interested person, the requested Member State could

refuse to execute the European arrest warrant, unless one of the four provided

situations that guarantee the respect of the defense rights is met. In order to

determine whether the person was not present at the proceedings -and, if so,

whether any of the situations precluding the refusal is fulfilled, the requested

judicial authority needs to know beforehand which is exactly the trial resulting in

the decision that shall be taken into consideration.

However, despite art. 4a.1 of the European arrest warrant regulation requires

considering the “trial resulting in the decision” before deciding on the execution

or the refusal, the EU legislator has not defined this concept in the wording of the

Framework Decision governing the warrant, nor has it made an express reference

to the national law of the Member States in order to determine its meaning and

scope. This justifies the fact that, in recent years, national courts have referred to

the Court of Justice of the European Union (hereinafter ECJ) several questions

for a preliminary ruling concerning that concept. In an effort to ensure the

uniform application of EU Law by the courts of the different Member States, the

Luxembourg judges have given a uniform interpretation to the expression “trial

resulting in the decision”, considering it an autonomous concept of EU Law.

This research work is aimed at analyzing in detail the interpretation given by

the ECJ to the autonomous concept of EU Law “trial resulting in the decision” for

the purposes of the European arrest warrant. To this effect, after explaining the

Dra. Patricia Llopis Nadal

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legal framework where this concept can be found and the structure of art. 4a.1 of

the European arrest warrant regulation, this paper focuses on the ECJ case-law

rendered since 2017 in order to define what shall or shall not be considered as the

“trial resulting in the decision” 1.

2. THE EUROPEAN ARREST WARRANT AND DECISIONS RENDERED

IN ABSENTIA: AN AMENDED REGULATION THAT REQUIRES

RECOGNIZING “THE TRIAL RESULTING IN THE DECISION”

When the European arrest warrant was first adopted in June 2002 2, the

regulation of the execution of a warrant issued for the purposes of executing a

custodial sentence or a detention order imposed by means of a decision rendered

in absentia was governed by art. 5 of the Framework Decision 3. According

to art. 5.1 of the original wording of Framework Decision 2002/584, when the

executing judicial authority received a European arrest warrant rendered to

execute a custodial sentence or a detention order imposed by a decision adopted

in absentia, it was allowed to make the execution of the warrant contingent on a set

of requirements. Thus, if the requested person had neither been summoned in

person, nor informed of the date and place of the hearing by any other means, the

execution of the warrant -it is, the surrender of the person, could be subjected to

the fact that the issuing Member State provided an adequate guarantee to ensure

that the person would have a chance to request for a retrial of the case in that

Member State as well as a chance to be present during the judgment -exercising

the rights of the defense.

Therefore, under art. 5.1 of Framework Decision 2002/584 before its 2009

amendment, it was clear that, after receiving the request to execute a European

arrest warrant issued based on a decision that had been rendered despite the

interested person was in absentia, the executing judicial authority had to verify

whether in the issuing Member State the requested person had the opportunity

to apply for a new trial concerning the same facts. If he or she had the chance

1 This book chapter takes as starting point a previous research work on the European arrest warrant

and in absentia proceedings published in Spanish [L N, P., “La orden de detención europea y

los juicios celebrados en rebeldía: análisis del art. 4.bis de la Decisión Marco 2002/584/JAI a la luz de

la jurisprudencia del TJUE”, Juan Sánchez, R. and Armengot Vilaplana, A. (editors), Justicia Penal y sus

reformas: Los retos de la eficiencia, la seguridad y las garantías procesales, ed. Tirant lo Blanch, Valencia, 2021, pp.

[395] a 440]. However, this paper’s focus is exclusively dedicated to the autonomous concept of EU law

“trial resulting in the decision”, examining in detail and updating the ECJ case-law on the topic.

2 For the original version, vid., Council Framework Decision 2002/584/JHA of 13 June 2002 on

the European arrest warrant and the surrender procedures between Member States, Official Journal of the

European Union, L 190, 18th of July 2002, p. 1-19.

3 It was part of the article regulating the “Guarantees to be given by the issuing Member State in

particular cases” and it was neither included among the “Grounds for mandatory non-execution of the

European arrest warrant” (provided in detail under art. 3), nor among the “Grounds for optional non-

execution of the European arrest warrant” (regulated in detail by art. 4).