Judgment in absentia as a bar to extradition

Definition

A judgment in absentia is a criminal judgment handed down without the defendant present. In extradition law it can constitute a bar to extradition if the convicted person was denied the right to a fair trial under Article 6 ECHR and Article 47 of the EU Charter.

Legal basis

For the European Arrest Warrant, Article 4a of EU Framework Decision 2002/584/JHA governs the treatment of judgments in absentia, implemented in Section 83(1) no. 3 IRG: extradition for the purpose of enforcing a sentence is not admissible if the convicted person did not appear in person at the trial resulting in the judgment — unless one of the exceptions under Section 83(2)–(4) IRG applies (including due summons, representation by a mandated defense lawyer, or the subsequent opportunity of a retrial or appeal proceedings).

When does a bar arise?

A bar to extradition does not arise automatically. What matters is whether the person was duly summoned, voluntarily waived their appearance, was represented by a defense lawyer, or whether after service of the judgment a legal remedy with a retrial is available. If all of these conditions are absent, extradition is generally not admissible.

Italy as a frequent originating state

Italy is a particularly frequent originating state for EAW requests based on judgments in absentia. In its Melloni and Tupikas rulings, the ECJ refined the standard: what matters is whether a legal remedy involving a full review of the merits exists in the issuing state.

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