MOSCOW, October 2 - RAPSI. European Court of Justice (ECJ) Advocate General Yves Bot issued an opinion today that under the European Union (EU) law governing the surrender of prisoners between EU countries, a judiciary executing a European arrest warrant cannot make such execution contingent upon the sought-after individual’s entitlement to a retrial in the country that issued the warrant, if the individual was absent for his conviction, but was aware of the proceedings against him and had agreed with an attorney to represent him.

The Framework Decision on the European arrest warrant and the surrender procedures between Member States was adopted in 2002 in order to replace the extradition systems that previously governed the transfer of criminal defendants within the European Union (EU). The purpose of the law was “to simplify and accelerate surrender procedures for persons between member states… by putting in place a system of free movement of judicial decisions based on mutual recognition.”

Bot’s very narrow opinion arises from an equally narrow set of facts. In October 1996, Spain’s high court ordered the extradition to Italy of a defendant named Stefano Melloni. The defendant was released on bail in Spain prior to the transfer, and promptly fled. In 1997, after he failed to appear in court, an Italian judge ordered that future notices in his case should be delivered to attorneys that the defendant had previously appointed. 

In his absence, Melloni was sentenced to ten years in prison for bankruptcy fraud.

He was arrested by Spanish police again years later, and his extradition was once again ordered by Spain’s high court. He then appealed to Spain’s Constitutional Court, which turned to the European Court of Justice with the issue of whether the Framework Decision should preclude Spain’s courts from transferring Melloni.

The Advocate General’s opinion is not binding upon the court; it is merely advisory.