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… conviction - Absence of the person concerned at the trial - Revocation of the suspension - of the defence - for the of and Fundamental Freedoms - Article 6 - Charter of Fundamental Rights of the European Union - Articles 47 and 48 - Infringement - Consequences) In Joined Cases C-514/21 and C-515/21, REQUESTS for a preliminary ruling under Article 267 TFEU from the Court of Appeal (Ireland), made by decisions of 30 July 2021, received at the Court on 20 August …

… Framework Decision 2009/299 12 Recitals 1 and 15 of Framework Decision 2009/299 state: ‘(1) The right of an accused person to appear in person at the trial is included in the right to a fair trial provided for in Article 6 of the for the of and Fundamental Freedoms [signed in Rome on 4 November 1950 (“the ECHR”)], as interpreted by the European Court of Human Rights. …

… in the sentence or detention order in respect of which the was issued, unless the indicates the matters required by points 2, 3 and 4 of point (d) of the form of warrant in the Annex to [Framework Decision 2002/584].’ …

… of between the Member States and the principle of mutual recognition, which is itself based on the between the latter, are, in EU law, of fundamental importance given that they allow an area without internal borders to be created and maintained. …

… for the of and Fundamental Freedoms, signed in Rome on 4 November 1950, which must be taken into account when interpreting Article 47 of the Charter (see, to that effect, judgment of 26 October 2021, Openbaar Ministerie (Right to be heard by the executing judicial authority), C-428/21 PPU and C-429/21 PPU, EU:C:2021:876, paragraph 64), that the jurisdiction of a court to hear a case, under the relevant national rules, is part of the requirement to have a ‘tribunal established …

… be noted at the outset that no provision of Framework Decision 2002/584 excludes the issuing of several successive against a person, including where the execution of a first concerning that person has been refused. 141 Furthermore, such an issuing of a may prove necessary, in particular after the factors which prevented the execution of a previous have been ruled out or, where the decision refusing to …

… , within the meaning of Article 6(1) of Framework Decision 2002/584. …

… In addition, it must be emphasised that, in accordance with recital 14 of Directive 2012/13, that directive rests on the rights laid down in the Charter, and in particular Articles 6, 47 and 48 thereof, by building on Articles 5 and 6 of the for the of and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘the ECHR’), as interpreted by the European Court of Human Rights (‘the ECtHR’), and that the term ‘accusation’ is used to describe the same concept as …

… I note that, in the judgment of 26 February 2013, Melloni (C-399/11, EU:C:2013:107, paragraphs 55 to 64), the Court held, in consideration of the principles of and mutual recognition, that the automatic nature of the surrender of a person convicted in absentia who is the subject of a is binding even where the executing Member State develops in its constitutional order a stricter concept of the right to a fair trial. 82 The answer which the Court is required to …

… . …’ B. …

… In that context, the following recitals of that framework decision are of relevance: ‘(1) The right of an accused person to appear in person at the trial is included in the right to a fair trial provided for in Article 6 of the for the of and Fundamental Freedoms, as interpreted by the European Court of Human Rights. …

… OPINION OF ADVOCATE GENERAL ĆAPETA delivered on 27 October 2022(1) Joined Cases C-514/21 and C-515/21 LU (C-514/21), PH (C-515/21) v Minister for Justice and Equality (Requests for a preliminary ruling from the Court of Appeal (Ireland)) (Reference for a preliminary ruling - Judicial cooperation in criminal matters - Framework Decision 2002/584/JHA - and the surrender procedures between Member States - issued for the purpose of executing a custodial …

… This Directive lays down rules concerning the right to interpretation and translation in criminal proceedings and proceedings for the execution of a . 2. …

… Legal context European Union law Directive 2010/64 3 Recitals 5 to 7, 9, 14, 17, 22 and 33 of Directive 2010/64 state: ‘(5) Article 6 of the European for the of and Fundamental Freedoms[, signed in Rome on 4 November 1950, (“the ECHR”)] and Article 47 of the Charter of Fundamental Rights of the European Union [(“the Charter”)] enshrine the right to a fair trial. Article 48(2) of the Charter guarantees respect for the rights of the defence. …

… in the criminal justice systems of all Member States, which, in turn, should lead to more efficient judicial cooperation in a climate of . …

… The general aim of the questions referred by the national court is that the Court define the conditions under which an executing judicial authority may refuse to give effect to a on the ground that there is a risk, should the person sought be surrendered to the issuing judicial authority, of infringement of his or her fundamental right to a fair trial before a tribunal established by law, enshrined in Article 6(1) of the European for the of …

… Care must also be taken not to jeopardise the attainment of the objective of Framework Decision 2002/584 and the between the Member States on which the mechanism established by that framework decision rests. 14. …

… The execution of the shall take place as soon as these grounds have ceased to exist’. See, on this point, Billing, F., ‘Limiting on fundamental rights grounds under the and lessons learned from transfers under Dublin III’, New Journal of European Criminal Law, SAGE Journals, 2020, Vol. 11(2), p. 197. …

… Legal context International law 3 Article 5 of the for the of and Fundamental Freedoms (‘the ECHR’), signed in Rome on 4 November 1950, provides: ‘1. Everyone has the right to liberty and security of person. …

… Articles 6 and 47 of the Charter of Fundamental Rights of the European Union, the right to freedom of movement and residence and the principles of equality and must be interpreted as meaning that the judicial authority issuing a , adopted under Council Framework Decision 2002/584/JHA of 13 June 2002 on the and the surrender procedures between Member States, as amended by Council Framework Decision 2009/299/JHA of 26 February 2009, is under …

… be true of the if, as the case may be, the referring court issues such a warrant. …

… Preliminary observations 40 It is important to recall, first of all, that both the principle of between the Member States and the principle of mutual recognition, which is itself based on the between the latter, are, in EU law, of fundamental importance given that they allow an area without internal borders to be created and maintained. …

… for the of and Fundamental Freedoms, signed in Rome on 4 November 1950 (ECHR). 16 The referring court refers also to the judgment of 15 July 2021, Commission v Poland (Disciplinary regime for judges) (C-791/19, EU:C:2021:596, paragraphs 108 and 110). 17 That court states, moreover, that it is aware of a list, established on 25 January 2020, containing the names of 384 judges appointed on application of the KRS since the entry into force of the Law of 8 December 2017. …

… between the Member States which underpins the mechanism established in that framework decision. 96 That said, in circumstances such as those at issue in Case C-563/21 PPU, where the composition of the panel of judges called upon to hear the case concerning the person in respect of whom the has been issued is not known at the time when the executing judicial authority has to decide on the surrender of that person to the issuing Member State, that …

… In such a situation, I do not see how the high level of and mutual recognition on which the EAW system is based could be guaranteed. 71. …

… In that judgment, while having observed that, according to the case-law of the European Court of Human Rights, the right to be judged by a tribunal ‘established by law’ within the meaning of Article 6(1) of the European for the of and Fundamental Freedoms, signed in Rome on 4 November 1950, to which the second paragraph of Article 47 of the Charter corresponds, (36) encompasses, by its nature, the process of appointing judges, (37) the Court stated that an irregularity …

… In the words of Article 1 of that framework decision, entitled ‘Definition of the and obligation to execute it’: ‘1. The [EAW] is a judicial decision issued by a Member State with a view to the arrest and surrender by another Member State of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order. 2. …

… It also lays down rules concerning the right to information of persons subject to a relating to their rights.’ 9 Article 3 of Directive 2012/13, entitled ‘Right to information about rights’, is worded as follows: ‘1. …

… Legal context EU law Directive 2010/64 3 Recitals 5, 12 and 24 of Directive 2010/64 state: ‘(5) Article 6 of the European for the of and Fundamental Freedoms [, signed at Rome on 4 November 1950,] and Article 47 of the [Charter] enshrine the right to a fair trial. Article 48(2) of the Charter guarantees respect for the right of defence. …

… Once established, such register or registers shall, where appropriate, be made available to legal counsel and relevant authorities. …’ Directive 2012/13 7 Recitals 5, 30 and 34 of Directive 2012/13 are worded as follows: ‘(5) Article 47 of the [Charter] and Article 6 of the European for the of and Fundamental Freedoms (hereinafter “the ECHR”) enshrine the right to a fair trial. …