Analysis of the "Melloni" decision of the Court of Justice of the European Union

Lebedeva Yana Igorevna ORCID: 0000-0002-2982-5642 Junior Researcher, Institute of Legislation and Comparative Law under the Government of the Russian Federation 117218, g. Moskva, ul. B. Cheremushkinskaya, d. 34, Russia, g. Moscow, ul. B. Cheremushkinskaya, 34 lebedeva.ioanna@yandex.ru

Circumstances of the case

According to the circumstances of the case, Italian citizen Stefano Melloni was convicted in absentia by the Spanish Criminal court for 10 years. In August 2008, the District Court of Ferrara (Italy) requested his extradition for execution on the basis of two European arrest warrants. The decision to extradite him was made on October 1, 1996 by the National Audiencia (Spanish – Audiencia National), one of the highest courts in Spain. Melloni was a fugitive from justice, and after being caught by the Spanish police in 2008, the National Audience again decided to extradite him.

Paragraph 1 of Article 4a of the Framework Decision on the European Arrest Warrant ^[1] (as amended in 2009 ^[17] indicated that the executing judicial authority may refuse to execute the warrant if the person was not represented in a personal capacity in the framework of the trial. However, paragraphs "a" and "b" of paragraph 1 of Article 4a of the Decision contained an indication of two legal guarantees, compliance with one of which is sufficient for the extradition of a convicted person in absentia:

a) it can be clearly established that the person was informed in advance of the date and place of the court session;

(b) The person was represented by a defence lawyer in the court proceedings.

S. Melloni knew that a trial was being conducted against him, but he deliberately hid from justice. In addition, he was represented by defenders in the criminal court. Thus, after the convicted person had exhausted all legal remedies, he had to be extradited to the Italian authorities to serve his sentence without the possibility of a face-to-face review of the case.

A preliminary request

Subsequently, the convict filed a petition for constitutional protection (recurso de amparo) with the Constitutional Court of Spain, claiming that his extradition contradicts paragraph 2 of Article 24 of the Constitution ^{[3, p. 55]}. This article proclaims the right of access to the court and the right to defend oneself in court. In Decision No. 91/2000 of March 30, 2000 ^[25], the COP of Spain indicated that the implementation of extradition to countries that:

1) in the case of committing particularly serious crimes, guilty verdicts are allowed in absentia, and

2) do not make extradition dependent on whether the convicted person can challenge it,

it affects the very essence of the right to a fair trial to the extent of an infringement on human dignity. This, in the opinion of the Court, is the basis for refusal of extradition.

The Constitutional Court filed a preliminary request to the EU Court on the basis of clause 3 of Article 256 of the Treaty on the Functioning of the European Union (TFEU) ^[16]. The COP of Spain was interested in the general problem of the fact that the Framework Directive provides for an exhaustive list, which consists of only two legal guarantees, compliance with one of which leads to the impossibility of face-to-face review of the case in the requested State.

The Constitutional Court also drew attention to the fact that the right to access the court and the right to defend oneself in court are also guaranteed at the level of the European Union (Articles 47, 48 of the Charter). According to Article 51 of the Charter, Member States are obliged to respect these rights when implementing the right of the Union, the source of which is the Framework Decision.

Even if the Framework Decision somehow complies with the Charter, Spanish constitutional law clearly provides higher standards of protection. At first glance, Article 53 of the Charter resolves this conflict in favor of a higher national standard, which is typical for the international and European human rights protection system (see Article 53 of the ECHR ^[2]; paragraph 2 of Article 5 of the International Covenant on Civil and Political Rights of 1966 ^[4]).

Thus, the COP of Spain was interested in three questions that denote individual links of the above-mentioned logical chain:

1) is it possible to refuse extradition (despite the provisions of the Framework Decision) in order to respect fundamental rights;

2) is Article 4a of the Decision compatible with Articles 47, 48 of the Charter;

3) if so, is it possible to provide a higher level of protection based on the provisions of national constitutional law.

Question 1

The first question concerned whether it was possible to refuse extradition if it violated fundamental rights. This, at first glance, presupposes the Framework Decision itself, which "does not entail amendments to the obligation to respect fundamental rights ... including the right to protection of persons subject to criminal prosecution ..." (paragraph 2 of Article 1). Therefore, the Constitutional Court suggested that respect for fundamental rights may be a kind of "meta-condition" execution of the Framework Decision.

The EU Court ignored this assumption – it was guided by a literal reading of the first question ^{[13, paragraph 51]}. In the future, he was guided by the teleological (targeted) interpretation of the Framework Decision. In particular, the purpose of the European arrest warrant is to create a simplified and effective extradition system based on the principle of mutual trust between Member States. This trust is based on the belief that all European States have high standards of protection of fundamental rights.

Therefore, the Framework Decision contains only two minimum guarantees, compliance with even one of which is sufficient for extradition in absentia. And the two above-mentioned reservations of paragraphs "a" and "b" are precisely provided "in order to guarantee the right to protection of the person concerned" ^{[15, paragraphs 65, 70]}.

Question 2

The second is the question of whether the legal guarantees of the Decision are compatible with the provisions of Articles 47, 48 of the Charter – the right of access to court and the right to defend oneself in court. The EU Court, referring to the earlier decision in the Trade Agency case ^[12], pointed out that the right of personal presence at a court hearing is an important component of the right to a fair trial. However, this right cannot be regarded as absolute. The Court writes that "the accused may waive this right of his own free will, directly or indirectly, provided that the refusal is established in an unambiguous manner and is accompanied by minimal guarantees that correspond to the importance (of this right – approx. author)... . In particular, a violation of the right to a fair trial was not established, even if the accused did not appear in person, but was informed of the date and place of the trial or protected by a legal adviser ..." ^{[13, paragraph 49]}. This approach, according to the Court, also corresponds to the case-law of the ECHR ^{[18, 19, 20]}. Thus, paragraphs "a" and "b" just fix such a "voluntary and unequivocal waiver" of the right to participate in the trial. The person who granted such a refusal must be extradited without the right to face-to-face review of the case in the requested State.

Question 3

The Court's conclusions on the third issue are presented in paragraphs 58-62 of the Decision. The Court points out that allowing a member State not to apply EU law norms that fully comply with the Charter, but violate fundamental rights guaranteed by the Constitution, "undermines the principle of supremacy" (paragraph 58). The Court also points out that no norm, even of constitutional order, can undermine the effectiveness of EU law on the territory of a Member State (paragraph 59). In this case, "to be effective" is a very ambiguous expression – it can be understood as "to be effective", but rather means "to be effective" or simply "to act".

The Court agrees that when implementing EU law, States may take into account relevant national standards for the protection of fundamental rights. However, such application should not affect the "level of protection provided for by the Charter". In other words, States should first focus on the Charter standards, and then on their own constitutional standards. This is again necessary in order "not to jeopardize the supremacy, uniformity and effectiveness of EU law" (paragraph 60).

The practical consequence of this approach was that the Court ordered the extradition in compliance with one of the guarantees of paragraph 1 of Article 4a (paragraph 61). An additional argument was that the Framework Decision was adopted by the Council, which consists of ministers of the Member States. In other words, its adoption "reflects the consensus on the scope of [legal protection – approx. author], which should be provided" (paragraph 62). The expansion of the protection standard "undermines the principle of mutual trust and mutual recognition", as well as "the effectiveness of the Framework Solution" (paragraph 63).

Thus, the Court insists on the priority of the protection standards provided for by the Charter, even if they are lower than national standards. The predominant application of the latter, if they contradict the Charter, undermines the triad of the principles of "supremacy, unity, effectiveness" of EU law and mutual trust between Member States, or more specifically, the extradition system based on mutual recognition between Member States.

Subsequent decision of the Constitutional Court of Spain

On February 13, 2014, the Constitutional Court also ruled on the case of S. Melloni ^[24]. It considers the decision of the EU Court of Justice as "very useful", but indicates the need to supplement it with the considerations that the Constitutional Court previously expressed in the case of the ratification of the Constitution for Europe ^[23]. According to the position of the Constitutional Court, the transfer of powers in accordance with the Spanish Constitution has a limit (limit), which is "respect for the sovereignty of the state, the basic constitutional structures and the system of fundamental principles and values enshrined in the Constitution, in which fundamental rights acquire proper content" ^{[23, p. 9]}. For this reason, the Constitutional Court stated that the rule of law of the EU is based on respect for the basic national constitutional structures, which include fundamental rights.

Nevertheless, the decision further states that human rights treaties, including the ECHR and the Charter, are essential elements of the interpretation of the content of the rights recognized in paragraph 2 c. 24 of the Constitution. Ignoring the interpretation of the competent authorities established in accordance with these treaties "will constitute an indirect violation of fundamental rights by the Spanish authorities" ^{[21, sec. 2, item 4]}. Having considered a large number of decisions of the ECHR and the case law of the EU Court, the Spanish Constitutional Court also pointed out that they "largely coincide", and therefore represent an appropriate legal basis of interpretation for deciding on the case.

For this reason, the Constitutional Court had to reconsider its interpretation regarding access to the court and the right to defend itself in court, established in the already reviewed Decision No. 91/2000. By analogy with the position of the EU Court, it was decided that "a conviction in absentia does not entail a violation of the absolute content of the basic right to a fair trial ... when the accused made a voluntary and unequivocal decision to be absent, and if he was duly summoned to court and effectively defended by an appointed lawyer" ^{[21, Sec. 2, item 4]}.

Further, the Constitutional Court applied these conclusions to the practical side of the issue. He pointed out that the National Audience had established that the defense lawyer appointed by S. Melloni did not stop representing his interests, while the defendant was properly aware of the court proceedings against him, but preferred to hide from justice. In such circumstances, according to the Framework Decision and Interpretation proposed by the EU Court, the said person should be extradited without the right to face-to-face review of the case by the requesting State, that is, Italy.

Conclusions

The preamble of the Charter indicates that the European Union "places the human person at the center of its activities" (paragraph 2). However, the decision in the Melloni case says the opposite: fundamental rights cannot affect a number of considerations, which, therefore, acquire predominant importance.

First of all, it is the "intention of the legislator" (in this case, the ministers represented in the Council) when they adopt acts of secondary law. This directly contradicts the understanding of human rights, along with the rule of law, as the main constraints under state and other authorities. The Court's approach allows ministers, when carrying out external relations, including acting as legislators in the Council of the EU, not to take into account the restrictions established by the national Constitution (as interpreted by the relevant constitutional court), that is, to act ultra vires. The presented situation is also a contradiction between the position and activities of the executive and judicial authorities, the Constitutional Court and the relevant ministers.

Secondly, Article 53 was of the most important importance, which consisted in the fact that the heritage of human rights expressed in national and international acts would not be interpreted in the direction of lowering legal standards with reference to the Charter ^{[22, p. 1524]}. In practice, the exact opposite happened – the "supremacy, unity and effectiveness" of EU law demanded that the national court refuse to apply higher national standards in favor of very modest guarantees of a Framework Decision.

Thirdly, in this case, the supremacy was given to an act that has no direct effect, which is revolutionary in connection with the well-known position of the Court in the cases of Van Gend and Costa ^{[10, 11]}. According to the Court's formula developed in these early cases, an act of Community law has supremacy after it acquires direct effect in the national legal order.

More generally, the Melloni case shows that the goal of protecting fundamental rights is not always the very concern for the individual. In the later Siragusa case, with reference to the Melloni case, it is pointed out "the need to avoid a situation in which the level of protection of fundamental rights varies depending on the relevant national law in such a way as to undermine the unity, supremacy and effectiveness of EU law" ^{[8, paragraphs 31-32]}. This may indicate that the paradigm of the Court from the protection of human rights in exceptional terms is increasingly shifting towards the issues of interaction of legal orders.

There is no guarantee that the more "obstinate" constitutional courts in Europe will follow the path of the Spanish Constitutional Court in reducing constitutional standards. In this regard, we can recall the position of the Federal Constitutional Court of Germany in the Solange II case ^[21], according to which the protection of fundamental rights at the Union level is one of the conditions on which Member states agree to give EU law the desired supremacy. The need to respect fundamental rights at the Union level was also recognized by the EU Court itself in the decision on the Internationale Handelsgesellschaft case of 1970 ^[9].

The decision in the Melloni case seems rather "deaf" in relation to the constitutional peculiarities of the Member States. In this regard, it can be noted that the Court could return to a more compromise and balanced approach in the cases of Omega, Sayn-Wittgenstein and Filipiak ^{[6, 7, 14]}. After the decision in the Melloni case, the chances of this becoming less and less.