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Cyprus / Supreme Court of Cyprus / 230/201

Attorney General v xxx Proios

Deciding Body type:
National Court/Tribunal
Deciding Body:
Supreme Court
Type:
Decision
Decision date:
03/03/2020
ECLI:
ECLI:CY:AD:2020:A8
Key facts of the case:

The Attorney General appealed against a trial court decision which had rejected the application of the Greek authorities for the execution of the European Arrest warrant against a Greek national residing in Cyprus convicted in Greece in absentia for economic crimes, on the ground that the Greek authorities had not provided the legal guarantees necessary when persons are tried and convicted in absentia. The wanted person argued that summons were wrongly served: they were given to his sister with whom he has no relations and to his mother who suffers from dementia and did not understand what the documents were about. The trial court had rejected the application to execute the arrest warrant on the ground that the legal guarantees offered by the Greek justice system were insufficient, since they provided only the right to appeal and not the right to a retrial. The Attorney General appealed the trial court decision on the ground that the legal guarantees provided by the Greek authorities were sufficient and that the trial court had no right to look into the content of these guarantees.

Key legal question raised by the Court:

The key legal question was whether the court was justified in refusing to execute the European Arrest Warrant on the basis of the efficacy of the legal guarantees provided by the Greek authorities. Τhe Appeal Court relied on Melloni3 to conclude that article 4(a)(1) of the Framework Decision on the European Arrest Warrant does not infringe Charter articles 47 and 48(2) and that member states are not at liberty to deny executing an arrest warrant provided the wanted person falls into one of the four categories foreseen in this article, however the case under consideration does not fall into any of these categories. Citing paragraph 64 of the Melloni4 ruling, that Charter article 53 cannot be used to make the surrender of a person convicted in absentia conditional open the conviction being open to review, the Appeal Court concluded that it is possible for the national court to exercise its right not to execute an arrest warrant where the review of the conviction in Greece is only possible through filing an appeal invoking force majeure. A dissenting judge disagreed with the rejection of the appeal, on the basis of article 5(2) of the Framework Decision on the European Arrest Warrant which renders the execution of the arrest warrant conditional upon legal guarantees only if the offence at stake is punishable by custodial life sentence or life-time detention; the prison sentences imposed in this case ranged between 6-36 months. The dissenting judge relied on the CJEU ruling in Melloni5 which interpreted Article 4a(1) of the Framework Decision as precluding the rendering of the execution of a European arrest warrant conditional upon the conviction in absentia being open to review in the issuing Member State. The dissenting judge stressed that in Melloni, the CJEU concluded that this provision does not prejudice the rights to an effective judicial remedy and to a fair trial, or the rights protected by Charter articles 47 and 48(2). According to the dissenting judge, article 4(a) of the Framework Decision should be read in light of this interpretation and the execution of the European arrest warrant should not be made conditional upon the adequacy of the legal guarantees safeguarding the wanted person’s right to a retrial. Relying on Melloni, the dissenting judge stated that although Charter Article 53 permits the use of more favourable national standards for the protection of fundamental rights, this presupposes that primacy, unity and effectiveness of EU law are not compromised in the process; article 53 cannot be interpreted as enabling a court to make the surrender of person convicted in absentia conditional upon the conviction being open to review, as that would undermine the principles of mutual trust and recognition which the Framework Decision purports to uphold.

Outcome of the case: