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Saturday, May 25, 2024 | Back issues
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Bankruptcy Cheat Must Face the Music in Italy

(CN) - Spanish authorities cannot shield a man whom an Italian court convicted in absentia of bankruptcy fraud, the EU's Court of Justice ruled Tuesday.

A Spanish court first ordered Stefano Melloni extradited to Italy in 1996 to face trial, but released him on $36,000 bail. Melloni fled the following day.

An Italian court then convicted Melloni in absentia and sentenced him to 10 years in prison, and the Bologna appeals court affirmed that judgment in 2003. Italy's supreme court dismissed an appeal lodged by Melloni's lawyers a year later.

Spanish police picked up Melloni again in 2008. Opposing extradition, Melloni claimed that Spanish case law conditions extradition on the possibility of appealing one's sentence. Italian law, however, forbids the appellate process for plaintiffs convicted in absentia.

Spain's court ordered Melloni back to Italy, telling the man that since he had deliberately fled before his trial and hired attorneys to defend him in absentia, his rights to defense had been respected. Melloni appealed that decision to Spain's constitutional court, which asked the EU Court of Justice for clarification .

In its decision Tuesday, the Luxembourg-based Court of Justice said that member states have an obligation to execute arrest warrants, even in cases where an individual has been convicted in absentia - provided the person was both aware of the scheduled trial and was defended at the trial, as Melloni was in this case.

EU lawmakers "intended to facilitate judicial cooperation in criminal matters by improving mutual recognition of judicial decisions between member states through harmonization of the grounds for non-recognition of decisions rendered following a trial at which the person concerned did not appear in person," according to the ruling. "The EU legislature, in defining those common grounds, wished to allow 'the executing authority to execute the decision despite the absence of the person at the trial, while fully respecting the person's right of defense.'"

Serving an arrest warrant for a conviction in absentia does violate the EU's charter on human rights, according to the court.

"Regarding the scope of the right to an effective judicial remedy and to a fair trial ... and the rights of the defense guaranteed by [the human rights charter], it should be observed that, although the right of the accused to appear in person at his trial is an essential component of the right to a fair trial, that right is not absolute," the ruling states. "The accused may waive that right of his own free will, either expressly or tacitly, provided that the waiver is established in an unequivocal manner, is attended by minimum safeguards commensurate to its importance and does not run counter to any important public interest. In particular, violation of the right to a fair trial has not been established, even where the accused did not appear in person, if he was informed of the date and place of the trial or was defended by a legal counselor to whom he had given a mandate to do so."

EU extradition law "lays down the circumstances in which the person concerned must be deemed to have waived, voluntarily and unambiguously, his right to be present at his trial, with the result that the execution of a European arrest warrant issued for the purposes of executing the sentence of a person convicted in absentia cannot be made subject to the condition that that person may claim the benefit of a retrial at which he is present in the issuing member state," the ruling adds.

Spain furthermore cannot apply its constitutional law to Melloni's case, the court found, saying it "would undermine the principle of the primacy of EU law."

"It is true that [the EU charter] confirms that, where an EU legal act calls for national implementing measures, national authorities and courts remain free to apply national standards of protection of fundamental rights, provided that the level of protection provided for by the charter, as interpreted by the court, and the primacy, unity and effectiveness of EU law are not thereby compromised," according to the ruling. "However, as is apparent from this judgment, [EU extradition law] does not allow member states to refuse to execute a European arrest warrant when the person concerned is in one of the situations provided for therein."

The court continued: "It should also be borne in mind that the adoption of [EU extradition law] ... is intended to remedy the difficulties associated with the mutual recognition of decisions rendered in the absence of the person concerned at his trial arising from the differences as among the member states in the protection of fundamental rights. That framework decision effects a harmonization of the conditions of execution of a European arrest warrant in the event of a conviction rendered in absentia, which reflects the consensus reached by all the member states regarding the scope to be given under EU law to the procedural rights enjoyed by persons convicted in absentia who are the subject of a European arrest warrant."

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