Up-531/19

Reference no.:
Up-531/19
ECLI:
ECLI:SI:USRS:2019:Up.531.19
Abstract:
From Article 22 of the Constitution there follows, inter alia, the prohibition of judicial arbitrariness. According to the established constitutional case law, this constitutional procedural safeguard is also violated when a court decision is manifestly erroneous. The position of both courts that Romania provided appropriate guarantees that after the complainant's surrender to Romania he would be tried again is manifestly erroneous and entails a violation of the right determined by Article 22 of the Constitution.
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[The text published below is a summary prepared for the annual report.]
 
European Arrest Warrant
 
By Decision No. Up-531/19, dated 4 July 2019, the Constitutional Court decided on the constitutional complaint of a Slovene citizen who was found guilty, in Romania, of committing two criminal offences of tax evasion, and was sentenced to a four-year prison sentence. On the basis of a European arrest warrant, Romania asked the Republic of Slovenia to surrender the complainant in order for him to serve the imposed sentence. By an order dated 4 March 2016, which was challenged by the constitutional complaint, the Ljubljana District Court allowed the surrender, but postponed it until the complainant had served a prison sentence imposed in different criminal proceedings in the Republic of Slovenia. In the order allowing the postponed surrender, the Court stated that the complainant was not present in person at the trial in Romania at which the judgment of conviction was issued, and he was also not invited in person; nevertheless, the condition for his surrender determined by the second paragraph of Article 13 of the Cooperation in Criminal Matters with the Member States of the European Union Act (the CCMMSEUA-1) was fulfilled, as Romania issued appropriate assurances that, following the surrender, the complainant would have the possibility of a retrial. The complainant filed an appeal against this order, which the Ljubljana Higher Court dismissed.

Following the issuance of the challenged order, the complainant attempted to secure a retrial in Romania and filed two applications to the competent Romanian court. The Romanian courts treated the first application as an appeal against the judgment of conviction at the first instance. The appellate court in Timișoara established that the judgment of the Timiș District Court was not served on the complainant, and therefore ordered that the judgment be translated into Slovene and served on him in the penitentiary in the Republic of Slovenia. Concurrently, it invited the complainant to the hearing. The appellate court then carried out the hearing in absentia and dismissed his appeal as unfounded. The Romanian courts treated the second application as a motion for a retrial on the basis of Article 466 of the Romanian Criminal Procedure Code, which regulates the reopening of a criminal procedure in the event of a trial against a person convicted in absentia. The court of first instance dismissed this motion, and the appellate court in Timișoara upheld that decision. From the order of the appellate court it follows, inter alia, that the complainant was sent an invitation to appear at court at both the first and second instances, in conformity with the Romanian legislation.
 
Upon having obtained the decision of the Romanian courts, the complainants filed a request before the Ljubljana District Court for the abrogation or revocation of the challenged final order by which the postponed surrender of the complainant to Romania was granted. He alleged that the surrender was granted due to the assurances of the Romanian authorities that he would be ensured a retrial, but later it became apparent that these assurances were not met. The investigating judge of the Ljubljana District Court treated the complainant’s application as an appeal against the challenged final order on surrender and rejected it as inadmissible. The complainant filed an appeal against that decision, which was dismissed by a panel of the Ljubljana District Court.
 
The complainant filed a constitutional complaint against both final orders, in which he alleged that violations of the rights to a defence, to a fair trial, to a counsel, and to a public trial occurred. He alleged that the surrender was granted due to the assurances of the Romanian authorities that he would be ensured a retrial, but subsequently it became apparent that these assurances no longer exist and in fact had never existed, as his appeal against the judgment of conviction was dismissed in Romania, and also his request for a retrial – due to fact that the trial was carried out in absentia – was dismissed. The complainant opined that the legal basis for the surrender thus ceased to exist.

The Constitutional Court held that the position of both Slovene courts as to the fact that Romania provided appropriate assurances, as determined by the second paragraph of Article 13 of the CCMMSEUA-1 that, after the surrender, the complainant would be ensured a retrial, is manifestly erroneous and entails a violation of the right determined by Article 22 of the Constitution. From neither the European arrest warrant at issue nor from the subsequently obtained documents is it possible to discern clear and concrete assurances by the Romanian judicial authorities (1) that immediately after the surrender of the complainant the judgment – on which the European arrest warrant ensuring the execution of the sentence is based – would be served on the complainant; (2) that the complainant would be informed of his right to request a retrial, this time while he is present; and (3) that he would be informed of the time limit during which he would be able to request a retrial. According to the Constitutional Court, the mere allegation of the Romanian court that a person who was tried in absentia can, in conformity with the Romanian legislation, require the reopening of criminal proceedings, including the enclosed translation of some provisions of the Romanian Criminal Procedure Code, does not entail the assurances referred to in the second paragraph of Article 13 of the CCMMSEUA-1. The Constitutional Court abrogated the final order allowing the surrender and remanded the case for new adjudication to the Ljubljana District Court.
Note:
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Document in PDF:
Type of procedure:
constitutional complaint
Type of act:
individual act
Applicant:
Vito Groznik, Litija
Date of application:
08.05.2019
Date of decision:
04.07.2019
Type of decision adopted:
decision
Outcome of proceedings:
annulment or annulment ab initio rejection
Document:
AN03938