Key facts of the case:
With this appeal procedure, the appellant sought to challenge the first instance decision ordering the execution of a European arrest warrant issued against him by a Greek court in April 2016. The arrest warrant concerned four criminal cases in which the appellant was accused of different crimes: one referred to a criminal prosecution which was suspended and the other three concerned the serving of sentences imposed by a Greek court. All cases concerned tax evasion for which the appellant had been tried by the Greek Court in absentia; it appeared that he had been declared to be of unknown address although his address was known. Τhe Greek Court notified the Cypriot Court that although the Framework Decision 2009/299 had not as yet been transposed, if the accused was declared to be of unknown address but his address was in fact known, the accused may apply for the annulment of the decision issued against him or may appeal the decision even if the deadline for the appeal has passed, requesting the suspension of the first instance decision until a final decision of the appeal court is delivered.
The appeal was premised on the argument that his extradition to Greece would infringe the European arrest warrant law and the Framework Decisions which this law transposes. He argued that challenging the evidence which the first instance court failed to evaluate could not be done before the Greek court since the Greek criminal procedure code did not entitle him to request a retrial in Greece to assess the substance of his case and to evaluate the new evidence. The appellant argued that trial court was wrong to accept the assertion of the requesting country that he could make use of article 430 of the Greek criminal procedure code in order to request a retrial or appeal the decision against him. He further argued that he should not be surrended to the Greek authorities for the sole reason of serving on him the charge in a criminal case which had meanwhile been suspended. The respondents argued that the Greek prosecutor had satisfied the Court that the appellant has, under conditions, the right under Greek law to challenge the decisions issued against him in absentia.
Outcome of the case:
Relying on the CJEU’s reasoning in the case of Melloni, the court concluded that article 14(2) of the national law, which is identical to article 4(a) established by article 2 of the Framework Decision on procedural rights (amendments to other FDs) casts a duty on the court to surrender a person convicted in absentia where the person was notified of the date of the trial and the possibility of an issue of a decision against him in absentia; in such a case the surrender of the person may not depend on whether a retrial will be conducted in the receiving state following surrender. In Melloni the CJEU ruled that the rights safeguarded in articles 47 and 48(2) of the Charter are not absolute and the accused person may expressly or impliedly opt out of these rights, provided such resignation is undisputable and is not contrary to public interest. The appellant in this case opted out of the right to be present in his trial and therefore the execution of the European arrest warrant is not conditional upon the conducting of a retrial in the requesting state. Article 4(a) of the Framework Decision on procedural rights (amendments to other FDs) does not infringe the right to a fair trial or to an effective appeal, safeguarded by articles 47 and 48(2) of the Charter. The guarantees offered by the Greek Court were deemed satisfactory and the appeal was rejected, by a majority of two judges over one. The third judge, who is also the president of the Supreme Court, disagreed with this ruling and issued a dissenting opinion ruling that the Cypriot Court had discretion to refuse the execution of the European Arrest Warrant on the ground that the judicial measures required by Framework Decision on procedural rights (amendments to other FDs) do not appear to be met by the requesting state. Greece had not yet transposed Framework Decision on procedural rights (amendments to other FDs) and the right of a wanted person to be tried anew provided in the Greek Criminal Procedure Code is conditional and does not provide the same safeguards as article 14(2)(c) and (d) of the Cypriot law. For the dissenting judge, it was clear that in this case the wanted person was not personally notified about the time and place of his trial, was not represented by a lawyer and he never resigned himself from the right to be informed about his case or to be present in his trial. He concluded that the interests of justice would be better served if the Court’s discretion had been exercised in favour of the wanted person.
49. Regarding the scope of the right to an effective judicial remedy and to a fair trial provided for in Article 47 of the Charter, and the rights of the defence guaranteed by Article 48(2) thereof, it should be observed that, although the right of the accused to appear in person at his trial is an essential component of the right to a fair trial, that right is not absolute (see, inter alia, Case C‑619/10 Trade Agency  ECR, paragraphs 52 and 55). 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. In particular, violation of the right to a fair trial has not been established, even where the accused did not appear in person, if he 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.
50. This interpretation of Articles 47 and 48(2) of the Charter is in keeping with the scope that has been recognised for the rights guaranteed by Article 6(1) and (3) of the ECHR by the case-law of the European Court of Human Rights (see, inter alia, ECtHR, Medenica v. Switzerland, no. 20491/92, § 56 to 59, ECHR 2001‑VI; Sejdovic v. Italy [GC], no. 56581/00, § 84, 86 and 98, ECHR 2006‑II; and Haralampiev v. Bulgaria, no. 29648/03, § 32 and 33, 24 April 2012).
49. Όσον αφορά την έκταση εφαρμογής του δικαιώματος για αποτελεσματική προσφυγή και δίκαιη δίκη, το οποίο προβλέπει το Άρθρο 47 του Χάρτη, καθώς και των διασφαλιζομένων από το Άρθρο 48, παράγραφος 2, αυτού δικαιωμάτων άμυνας, πρέπει να διευκρινισθεί ότι, ναι μεν το δικαίωμα του κατηγορουμένου να παρίσταται αυτοπροσώπως στη δίκη συνιστά ουσιώδες στοιχείο του δικαιώματος για δίκαια δίκη, εντούτοις το δικαίωμα αυτό δεν είναι απόλυτο (βλ., μεταξύ άλλων, απόφαση της 6ης Σεπτεμβρίου 2012, C‑619/10, Trade Agency, σκέψεις 52 και 55). Ο κατηγορούμενος μπορεί, εξ ιδίας βουλήσεως, να παραιτηθεί του δικαιώματος αυτού ρητώς ή σιωπηρώς, υπό την προϋπόθεση ότι η παραίτηση χωρεί κατά τρόπο μη επιδεχόμενο αμφισβήτηση, συνδυάζεται με κατ' ελάχιστον εγγυήσεις αντίστοιχες της σοβαρότητάς της και δεν προσκρούει σε κανένα σημαντικό δημόσιο συμφέρον. Ειδικότερα, δεν στοιχειοθετείται προσβολή του δικαιώματος για δίκαιη δίκη όταν ο ίδιος ο κατηγορούμενος δεν παρέστη αυτοπροσώπως, αφ' ης στιγμής ενημερώθηκε σχετικά με τον χρόνο και τον τόπο της δίκης ή την υπεράσπισή του ανέλαβε δικηγόρος στον οποίον ο ίδιος έδωσε σχετική εντολή.
50. Η ανωτέρω ερμηνεία των άρθρων 47 και 48, παράγραφος 2, του Χάρτη τελεί σε αρμονία με την αναγνωριζόμενη με τη νομολογία του Ευρωπαϊκού Δικαστηρίου των Δικαιωμάτων του Ανθρώπου έκταση εφαρμογής των διασφαλιζομένων στο Άρθρο 6, παράγραφοι 1 και 3, της ΕΣΔΑ δικαιωμάτων (βλ., μεταξύ άλλων, ΕΔΔΑ, αποφάσεις Medenica κατά Ελβετίας της 14ης Ιουνίου 2001, προσφυγή αριθ. 20491/92, § 56 έως 59, Sejdovic κατά Ιταλίας της 1ης Μαρτίου 2006, προσφυγή αριθ. 56581/00, Recueil des arrêts et décisions 2006‑II, § 84, 86 και 98, και Haralampiev κατά Βουλγαρίας της 24ης Απριλίου 2012, προσφυγή αριθ. 29648/03, § 32 και 33).