European Arrest Warrant and the Right to Defence: An Analysis of Ruling No. 50684 of 2023

The recent order No. 50684 of September 29, 2023, by the Court of Cassation addresses a crucial issue in European criminal law: the defendant's right to legal defence in criminal proceedings, especially concerning judgments rendered in the defendant's absence. This matter falls within the scope of the European Arrest Warrant, a mechanism that facilitates the surrender of wanted persons between EU Member States.

The Case and the Preliminary Questions

The Court of Cassation deemed it appropriate to refer to the Court of Justice of the European Union (CJEU) for clarification on whether the right to legal defence should be considered a fundamental right, as enshrined in Article 6 of the Treaty on European Union (TEU) and the Charter of Nice. Specifically, the preliminary questions raised concern:

• Whether the right to legal defence in criminal proceedings is among the rights guaranteed by the ECHR and the Charter of Nice;
• Whether a conviction issued in the defendant's absence and without a lawyer can still uphold the right to defence;
• Whether a State can refuse the surrender of an absent defendant who has not been able to benefit from adequate defence.

Convicted person "in absentia" without being assisted by any lawyer – The convicted person's right to obtain a retrial with defence guarantees – Sufficiency – The requested State's right to refuse surrender – Conditions – Preliminary ruling to the CJEU. In the context of the European Arrest Warrant, the following preliminary questions must be submitted to the Court of Justice of the European Union, pursuant to Article 267 TFEU: a) whether Article 6 TEU must be interpreted as meaning that the defendant's right to legal defence in criminal proceedings is included among the rights enshrined in the Charter of Nice and the fundamental rights guaranteed by the ECHR and resulting from the common constitutional traditions of the Member States of the European Union, which it recognises as general principles of Union law, and which Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States is obliged to respect; b) whether, if so, the defendant's right to legal defence in criminal proceedings can nevertheless be considered to have been respected if the conviction was delivered against a defendant who was absent and not assisted by any lawyer, either of their choice or appointed by the issuing judicial authority, even if subject to the convicted person's discretionary right, once surrendered, to obtain a retrial with defence guarantees; c) whether, consequently, Article 4-bis of Council Framework Decision UE 2002/584/JHA, introduced by Council Framework Decision UE 2009/299/GAI of 26 February 2009, must be interpreted as meaning that the requested State for surrender has the right to refuse the execution of a European arrest warrant issued for the purpose of serving a custodial sentence or measure, if the person concerned did not appear personally at the trial that concluded with the decision, even when the conditions referred to in paragraph 1, point (d), of the same Article 4-bis are met, but the person concerned was not assisted by a lawyer, appointed by their choice or ex officio by the issuing judicial authority.

Implications of the Ruling

This order from the Court of Cassation represents a significant step in protecting the fundamental rights of defendants. The absence of a lawyer during criminal proceedings can severely compromise the right to defence, a cornerstone principle of a fair trial, as enshrined in Article 111 of the Italian Constitution and Article 6 of the ECHR. The ruling therefore emphasizes the need to ensure that every defendant, regardless of their presence in court, can benefit from adequate defence.

Conclusions

In conclusion, order No. 50684 of 2023 by the Court of Cassation not only clarifies the importance of the right to defence in a European context but also invites reflection on the implementation of defence guarantees in the context of the European Arrest Warrant. The issue raised to the CJEU could have significant repercussions on the future of criminal proceedings in Europe, highlighting the importance of balancing security with the protection of individuals' fundamental rights.