(CN) - Spain must hand over an Italian man convicted in absentia for bankruptcy fraud and cannot impose conditions on his extradition, an EU court adviser said.
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 convicted Melloni in absentia and sentenced him to 10 years in prison, a judgment affirmed by a Bologna appeals court 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. The man fought his extradition, claiming that Spanish case law allows for extradition on the condition that a sentence can be appealed -- and Italian law 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.
The Luxembourg court's adviser, Yves Bot, wrote in his opinion that the EU legislature specifically prevents courts from making extraditions conditional upon the subject being entitled to retrial. In the case of in absentia verdicts, European lawmakers provided an exhaustive list of situations to prevent infringement on the rights of defense, according to Bot.
What's more, since Melloni waived his right to appear at trial by fleeing, he cannot reclaim the benefit of a retrial now, the adviser added.
Bot said that he doesn't intend for his opinion to challenge member states' identities or national laws, and doesn't believe that Melloni's extradition challenges Spanish case law.
"The proceedings before both the Tribunal Constitucional and the Court of Justice persuade me that the determination of the scope of the right to a fair trial and of the rights of the defense in the case of judgments rendered in absentia does not affect the national identity of the Kingdom of Spain. Apart from the fact that the determination of what constitutes the 'essence' of the right to defend oneself remains contested in the Tribunal Constitucional, the Kingdom of Spain itself stated, at the hearing, relying inter alia on the exceptions in Spanish law to the holding of a retrial following a judgment rendered in absentia, that the participation of the defendant at his trial is not covered by the concept of the national identity of the Kingdom of Spain," Bot wrote.
The different rules of law across the EU must be melded and respected in order for Europe's judicial system to work effectively, Bot said, pointing out that Europe's law governing extradition "shows that the member states wished to take a joint approach to the execution of European arrest warrants issued for the purpose of executing judgments rendered in absentia and that that joint approach was compatible with the diversity of the legal traditions and systems of the Member States."
Bot's opinion is not binding on the Court of Justice, which has begun its own deliberations in the case.
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