Der Rahmenbeschluss zu Abwesenheitsentscheidungen : Brüsseler EU-Justizkooperation als Fall für Straßburg?

Abstract

Judgments rendered in absentia are at the core of the ordre public discussion as has shown the “Melloni case.” The issue has high practical relevance as a possible barrier to judicial cooperation in criminal matters. The following article investigates the solutions that have been found in European extradition law. In particular, it examines whether the new Article 4a of the Framework Decision on the European Arrest Warrant (introduced by Framework Decision 2009/299/JHA “on trials in absentia”) indeed meets – as many critics doubt – the standards of the European Convention on Human Rights and the ECtHR’s case law on the accused’s right to be present at his/her trial. The problem has come to the fore since Germany is currently in the process of implementing the 2009 Framework Decision. The article concludes that the new provision regarding the European Union’s extradition scheme can be “brought in line” via the means of interpretation that are in conformance with primary Union law. It also becomes apparent, however, that any future practice using the EAW form will jeopardize the defendant’s rights since it is now no longer the executing authority but the issuing one that decides whether a derogation from the ground for refusal due to trials in absentia is justified.