Background of the case1
Mr Melloni was wanted in Italy for bankruptcy fraud but living in Spain. In 1996, the First Section of the Sala de lo Penal of the Audiencia Nacional (the Criminal Division of the High Court in Spain) authorised the extradition of Mr Melloni. After being released on bail, Mr Melloni fled and could not be surrendered to the Italian authorities. In June 2000, the Tribunale di Ferrara (the District Court in Ferrara, Italy) sentenced Mr Melloni, in absentia, to 10 years in prison for bankruptcy fraud. The Corte d’appello di Bologna (the Court of Appeal in Bologna) issued a European arrest warrant for Mr Melloni.
Mr Melloni argued that the absolute requirements deriving from the right to a fair trial stated in Article 24(2) of the Spanish Constitution had been indirectly violated since the Italian procedural law made it impossible for him to appeal against sentences imposed in absentia. Additionally, such a violation has disregarded the very essence of a fair trial and undermines human dignity by allowing surrender to countries that allow convictions made in absentia without the possibility to appeal. Finally Mr Melloni argued that the European arrest warrant should only be executed if the Italian authorities could guarantee a possibility of appealing against the judgment.
According to the Spanish Tribunal Constitucional’s (Constitutional Court’s) case-law, the possibility to appeal was a condition for surrender in case of serious offences. However, Article 4a(1) of the applicable Council Framework Decision 2002/584/JHA2 gave no room for such condition if the convicted had been “aware of the scheduled trial, had been 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”. Melloni had chosen two lawyers to represent him before the Italian court and he was fully aware of the ongoing trial.
The Tribunal Constitucional requested a preliminary ruling concerning the interpretation of Article 4a(1) of the Framework Decision: Must Article 4a(1) of Framework Decision 2002/584/JHA, as inserted by Council Framework Decision 2009/299/JHA3, be interpreted as precluding national judicial authorities, in the circumstances specified in that provision, from making the execution of a European arrest warrant conditional upon the conviction in question being open to review, in order to guarantee the rights of defence of the person requested under the warrant?
In the event of the second question being answered in the affirmative, does Article 53, interpreted systematically in conjunction with the rights recognised under Articles 47 and 48 of the Charter, allow a Member State to make the surrender of a person convicted in absentia conditional upon the conviction being open to review in the requesting State, thus affording those rights a greater level of protection than that deriving from European Union law, in order to avoid an interpretation which restricts or adversely affects a fundamental right recognised by the Constitution of the Member State concerned?
First, according to the wording of Article 4a(1) of the Framework Decision there is one optional ground for the Member State to not execute a European arrest warrant, if the convicted did not appear in person at the trial which resulted in the conviction (para. 40). However, the ECJ referred to the opinion of Advocate General Bot, in particular his argument that the EU legislator already answered the question by accompanying Article 4a(1) with four exceptions and states that the optional ground cannot be accompanied with the requirement of appeal, even if it aims to guarantee the rights of defence of the person concerned (para 41 and 44). Therefore, Article 4a(1) must be interpreted as precluding the executing judicial authorities from making the execution of a European arrest warrant conditional upon the conviction rendered in absentia being open to appeal in the issuing Member State (para. 42 and 46).
Secondly, the ECJ responded to the question whether Article 4a of the Framework Decision is incompatible with fundamental rights and in particular Articles 47 and 48(2) in the Charter. The ECJ did an equal interpretation of Articles 47 and 48(2) as the European Court of Human Rights has done regarding Articles 6(1) and 6(3) in the European Convention on Human Rights (ECHR). The ECJ declares that the right to fair trial is a fundamental right, but it is not an absolute right. Mr Melloni was during the trial represented by two lawyers, but did not participate in person, and therefore the right to fair trial could not be considered violated. Article 4a of the Framework Decision is not incompatible with the Charter (para. 49-50).
As to the third question, the interpretation of Article 53 of the Charter suggested by the Spanish Court was rejected on the ground that it would contradict the principle of the supremacy of EU law, especially since Article 4a(1) in the Framework Decision (which is the rule in question) are in full compliance with the Charter. The ECJ stressed the importance of the principle of supremacy of the EU law, arguing that it was a distinct feature of the EU legal order (para 63-64).
The recognition of fundamental rights has been a part of EU law and its general principles since the 60s, and was first established in 1969 (Case 22/69, Stauder) and 1974 (Case 11/70, Internationale Handelsgesellchaft). It was recognised in order to promote primacy of EU law in cases where the national constitutional courts otherwise would give preference to the domestic legislation, which on the ECHR could grant a higher level of protection. With this as a point of departure, the judgment in Melloni is not very surprising. In order to assure effectiveness of EU law it would have been impossible for the ECJ to judge otherwise. Any other outcome would have infringed the impact of the European arrest warrant. By denying the option for the Member States to apply its domestic law with a higher level of protection, the ECJ balances the primacy of EU law against the constitutional identity of the Member States in favour of EU law. The ECJ declares that the protection of human rights can apply but not go further than the EU law standard.
Advocate General Bot explained that:
“The fundamental rights to be protected and the level of protection to be afforded to them [the member states] reflect the choices of a society as regards the proper balance to be achieved between the interests of individuals and those of the EU to which they belong. That determination is closely linked to assessments which are specific to the legal order concerned, relating particularly to the social, cultural and historical context of that order, and cannot therefore be transposed automatically to other contexts” (para. 109).
On the basis of what Advocate General Bot stated, the level of protection applied by the Member States cannot be automatically adopted for the EU since the level of protection applicable within the scope of EU law has to be tailor-made for the given context. In this case, the level of protection must be adapted to the European Union’s scope of freedom, security and justice, not in the light of the domestic fundamental right protections.
Before the Melloni judgment Article 53 has been regarded as a safeguard for the domestic fundamental rights against being limited by the ECJ interpretation of the Charter. This can no longer be held true due to how the ECJ and Advocate General Bot interpreted Article 53 in Melloni. This can be regarded as the ECJ going against the purpose of the article, which was to protect the fundamental rights within the constitutions.
The Member States are obliged to follow the definition made by the ECJ in the overlapping area of the domestic fundamental rights and the EU fundamental rights. The situation becomes visible when the norms collide with each other. When domestic fundamental rights conflict with European Union fundamental rights the EU definition of the rights takes precedence over the domestic ones.
The constitutional identities and the different legal systems of the Member States give rise to the question which rights are considered fundamental. To solve the problem the ECJ has declared that one of the main sources for interpreting EU rights is the constitutional tradition common to the Member States. However, the constitutional identity of the member state can agree with the ECJ, but it does not guarantee that the members of the EU do. This raises the question if the European Union, thus the principle of supremacy, in some interpretation can make an exception and give the Member States the possibility to, on their own, raise the bar for the protection of fundamental rights.
In a previous post we reviewed an article (Exploring the Limits of the EU Charter of Fundamental Rights by Koen Lenaerts, published in Volume 8 of the European Constitutional Law Review in October 2012 ) that raised the question how Article 53 could be used as a tool for Member States to assure that the Charter does not replace their national constitution and higher level of fundamental rights protections. Lenaerts discussed the possibility to interpret Article 53 as a codification of the Solange approach. By the Solange approach, the primacy of EU law was confirmed but conditioned upon a certain level of protection of the fundamental rights. The protection had to be at least equivalent to the level of protection ensured by the constitution of the Member States. One could wonder if such an interpretation would limit the primacy of EU law. However, it seems that the ECJ, in the Melloni judgement terminates this possibility, which Lenaerts also conclude in his article.
In the future, application of the Melloni judgement may lead to a situation where the Charter will provide the maximum rights due to the principle of the supremacy of EU law. This is controversial, especially according to countries that have raised the level of protection of the fundamental rights and in relationship to the European Court of Human Rights which uses the European Convention on the Human Rights as a minimum standard. But the ECJ achieves the opposite – the Charter is to be used as a maximum standard.
Case C-399/11. Link to the ECJ’s decision.
2002/584/JHA, Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States – Statements made by certain Member States on the adoption of the Framework Decision.
2009/299/JHA, Council Framework Decision 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.
by Elisabeth Aronsson, Hevi Dawody, Magnus Österdahl