European Arrest Warrant and the Right to Defense: An Analysis of Judgment No. 50684 of 2023

The recent order No. 50684 of September 29, 2023, from the Court of Cassation addresses a crucial issue in European criminal law: the defendant's right to technical defense in a criminal trial, especially concerning judgments pronounced in the absence of the defendant. This issue is set within the context of the European Arrest Warrant, a mechanism that allows for the surrender of wanted persons between the member states of the European Union.

The Case and Preliminary Questions

The Court of Cassation found it appropriate to refer to the Court of Justice of the European Union (CJEU) to clarify whether the right to technical defense should be considered a fundamental right, as established by Article 6 of the Treaty on European Union (TEU) and the Charter of Nice. In particular, the preliminary questions raised concern:

  • Whether the right to technical defense in a criminal trial is among the rights guaranteed by the ECHR and the Charter of Nice;
  • Whether a conviction issued in the absence of the defendant and without a defense attorney can still respect the right to defense;
  • Whether a state can refuse the surrender of an absent defendant who has not been able to benefit from adequate defense.
Subject convicted "in absentia" without being assisted by any defense attorney – Right of the convicted person to obtain a retrial with defensive guarantees – Sufficiency – Right for the requested state to refuse surrender – Conditions – Preliminary referral to the CJEU. Regarding 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 should be interpreted as meaning that the defendant's right to technical defense in a criminal trial is included among the rights enshrined in the Charter of Nice and the fundamental rights guaranteed by the ECHR, resulting from the common constitutional traditions of the member states of the European Union, which it recognizes as general principles of Union law and which the Council Framework Decision 2002/584/JHA of June 13, 2002, regarding the European Arrest Warrant and the procedures for surrender between member states, obliges to respect; b) whether, if so, the defendant's right to technical defense in a criminal trial can be considered respected if the conviction has been pronounced against an absent defendant who was not assisted by any defense attorney of their choice or appointed by the presiding judge, although subject to the discretionary right of the defendant, once surrendered, to obtain a retrial with defensive guarantees; c) whether, consequently, Article 4-bis of the Council Framework Decision 2002/584/JHA, introduced by the Council Framework Decision 2009/299/JHA of February 26, 2009, should be interpreted as meaning that the requested state for surrender has the authority to refuse the execution of a European Arrest Warrant issued for the purpose of executing a sentence or a custodial security measure, if the interested party did not appear personally at the trial that concluded with the decision, even when the conditions referred to in paragraph 1, letter d), of the same Article 4-bis exist, but the interested party was not assisted by a defense attorney of their choice or appointed by the presiding judge.

Implications of the Judgment

This order from the Court of Cassation represents a significant step in the protection of the fundamental rights of defendants. The absence of a defense attorney during a criminal trial can severely undermine the right to defense, a cornerstone principle of a fair trial, enshrined in Article 111 of the Italian Constitution and Article 6 of the ECHR. The judgment thus emphasizes the necessity to ensure that every defendant, regardless of their presence in the courtroom, can benefit from adequate defense.

Conclusions

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

Bianucci Law Firm