19/10/2017 - - General
EAW: in absentia decisions - CJEU rulings

Two recent judgments of the Court of Justice of the European Union (CJEU) clarify the interpretation of the concept of ‘trial resulting in the decision’ used in Article 4 a (1) of Council Framework Decision 2002/584/JHA.

Thus, in its judgment in Case C-270/17 PPU Tupikas the Court concluded that the concept of ‘trial resulting in the decision’ is an autonomous concept of EU law and hold that, where the issuing Member State has provided for a criminal procedure involving several degrees of jurisdiction which may thus give rise to successive judicial decisions, at least one of which has been handed down in
, the concept of “trial resulting in the decision” must be interpreted as relating only to the instance at the end of which the decision is handed down which finally rules on the guilt of the person concerned and imposes a penalty on him, such as a custodial sentence, following a re-examination, in fact and in law, of the merits of the case.

In its judgment in Case C-271/17 PPU Zdziaszek, the Court, asked to interpret Article 4a(1) of the mentioned framework decision, added to the interpretation of the concept of “trial resulting in the decision” that, where, following appeal proceedings in which the merits of the case were re-examined, a decision finally determined the guilt of the person concerned and also imposed a custodial sentence on him, the level of which was, however, amended by a subsequent decision taken by the competent authority after it had exercised its discretion in that matter and which finally determined the sentence, both decisions must be taken into account for the purposes of the application of Article 4a(1) EAW FD.

Both judgments are available in the EU official language on CJEU’s website at the above hyperlinks.


Background information

Article 4 a(1) of the Council Framework Decision 2002/584/JHA provides for an optional ground for refusal of execution of an European arrest warrant issued for the purpose of executing a custodial sentence or a detention order if the person did not appear in person at the trial resulting in the decision, unless the European arrest warrant states the situations mentioned in letters a) – c) or the guaranteed mentioned in letter d) ar the same paragraph.


Case C-270/17 PPU Tupikas

In 2017, a Lithuanian court issued an EAW for Tupikas in relation to the execution of a sentence of one year and four months. Although it was a proven fact that Tupikas had appeared in person at the trial at first instance, the EAW did not contain any information concerning his presence in the appeal proceeding. The referring Dutch court wondered whether the mere fact that the person concerned was able to exercise his right of defence at first instance is sufficient for it to be concluded that the requirements laid down in Article 6 ECHR (right to a fair trial) and Article 47 of the Charter (right to an effective remedy and to a fair trial) had been met. Therefore, the Dutch court decided to stay the proceedings and to refer a question to the Court of Justice.

Main question: Does the term ‘trial resulting in the decision’, within the meaning of Article 4a(1) of FD EAW, refer only to proceedings at first instance or, to the contrary, also to appeal proceedings, when the person concerned does not appear in the second stage?


Case C-271/17 PPU Zdziaszek

 In 2014, a Polish court issued an EAW against Zdziaszek, a Polish national, residing in The Netherlands, for the execution of two custodial sentences in Poland. Point (d) of the EAW indicated that Zdziaszek did not appear in person during the proceedings which led to the judicial decision which finally determined the sentence that he would have to serve. On the basis of the information provided by the issuing authority, the referring court takes the view that the situation referred to in Article 4a(1)(b) of EAW FD does not apply in the present case, since it is not apparent from that information that the person sought ‘[was] aware of the scheduled trial’ or that he ‘had given a mandate to a legal counsellor, who was either appointed by the person concerned or by the State, to defend him ... at the trial’. The Dutch court decided tostay the proceedings and refer questions to the CJEU for a preliminary ruling.

Main questions:

Must the concept of ‘trial resulting in the decision’, within the meaning of Article 4a(1) EAW FD be interpreted as referring to the appeal proceedings and/or to proceedings for the amendment of custodial sentences handed down previously, such as those which led to the judgment handing down a cumulative sentence at issue in the main proceedings? Is an executing judicial authority allowed to refuse to execute the EAW for the sole reason that neither the standard form of the EAW nor the additional information obtained from the issuing judicial authority pursuant to Article 15(2) EAW FD provide sufficient information to enable it to establish that one of the situations referred to in Article 4a(1)(a) to (d) EAW FD exists? 

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