Fulfillment of the Conditions of Law no. 302/2004 on the European Arrest Warrant

In the Romanian and European doctrine, taking into account the definition given by the European legislator in the normative act itself, the Framework “Decision no. 2002/584/JHA, the European arrest warrant was defined in a similar manner as the legislator did”. Thus, one jurisprudential decision states that: “from a legal point of view, the European arrest warrant is defined as a court decision issued by the competent judicial authority of an EU Member State, in order for another state to arrest and hand over a person who is wanted in order to stand for prosecution, trial or the execution of a custodial sentence or a security measure” (European Court of Justice, 2016).

The Preconditions for the Admission of the Preventive Measure Based on an European Arrest Warrant

In addition to the mandatory “grounds for refusing to execute an European arrest warrant, the legislator” also provided for some optional grounds on the basis of which the competent judicial bodies “of the executing Member State may refuse to execute an European arrest warrant”. These provisions give the courts of the executing Member State the right to invoke or not to invoke them and, implicitly, the right to execute or not to execute an European arrest warrant. In our view, the refusal to execute the warrant must be complemented by the establishment “of direct links between the judicial authorities of the two Member States”, with regard to adopting a solution to the situation. In this context, given the complexity of the cases, the specific circumstances of the crimes, as well as other elements, the two judicial authorities involved will have to ascertain the incidence of another European institution, namely the transfer of proceedings in criminal matters.

International cooperation in conducting procedural actions during the pre-trial investigation in the countries of the European Union and perspectives of its use in Ukraine

The article analyzes some areas of cooperation between law enforcement agencies of the European Union in the field of pre-trial investigation. Particular attention is paid to the European Arrest Warrant and its application. Ukraine aspiring to become a member of the EU must take into account all issues related to the issuance and execution of these warrants. Particular attention is paid to the analysis of more specific problems related to criminal-executive criteria for the perception of life imprisonment as subspecies of imprisonment for a certain period; systemic content ratio of general penitentiary norms, which determine the legal status of convicts sentenced to life imprisonment, and special ones, which should reproduce peculiarities of regime requirements of penitentiary institutions of different security levels (in particular, medium and maximum). It is proved that clarity, completeness and system-legal balance will be facilitated by the formal reproduction in the law of classification of all criminal-executive norms of Chapter 22 of the Criminal Executive Code (hereinafter–CEC) (based on a certain criterion) into norms of general and special significance, which in turn should be divided into the following subtypes. Moreover, the EU countries do not yet have the appropriate practice in the application of these warrants.

Protecting the Union Rule of Law Through National Court Scrutiny? A Comment on Joined Cases C-354/20 PPU and C-412/20 PPU L and P’

This contribution is a comment on the ECJ’s judgment of 20th December 2020 in L and P, which is a follow-up on the Court’s earlier ruling in LM – Minister for Justice and Equality (Deficiencies in the system of justice). It covers the key findings of the Advocate General’s Opinion, the judgment of the Court of Justice and the following implications for the national courts within the Judicial cooperation in criminal matters. The analysis investigates the case-law from a constitutional as well as a national perspective, with its main focus on pivotal considerations for the national courts within the execution of a European Arrest Warrant issued by a Rule of Law-backsliding country. The theoretical horizontal dialogue established by the Court is scrutinised in an attempt to concretise the diverse steps of the national examination of the judiciary in the issuing Member State.

The European Arrest Warrant in Designer Drugs Cases. With or Without Verification of Double Criminality?

The cross-border character of the designer drugs crimes forced the UE countries to cooperate in criminal prosecution. At first sight, in European Union law, there are proper instruments to enforce such cooperation. The Framework Decision on the European Arrest Warrant introduces the model of cross-border prosecution and abandons the requirement of double criminality in case of the group of the 32 crimes, listed in the Article 2 (2) of the FD EAW. The question is whether such a simple variant of EAW (without checking double criminality) may be enforced in designer drug cases. The work presents an argumentation that the normative meaning of Article 2 (2) of the FD EAW has to be established under European and international law. As long as a particular new drug is not internationally recognized as ‘psychotropic substance’ or ‘narcotic drug’, its trafficking cannot be treated as one of the 32 crimes, mentioned above.

Extradition under the EU–UK Trade and Cooperation Agreement

When the EU–UK Trade and Cooperation Agreement (TCA) was reached between the UK and the EU on 24 December 2020, it gave extradition practitioners only a few days to identify what, if anything, would remain from the European Arrest Warrant (EAW) system before it came into force on 1 January 2021. The article starts by setting out how the EAW was implemented in the UK prior to 1 January 2021, before turning to the TCA itself and what it means for extradition or ‘surrender’ between EU member states and the UK. In short, the EAW system no longer applies. The authors set out how the TCA provides a degree of continuity, now under the watchful eye of the UK–EU ‘Specialised Committee on Law Enforcement and Judicial Cooperation’. There are notable departures from the EAW system however, in both practical and legal terms, that open the door to increased scrutiny of extradition requests. The authors explore the impact these changes may have on the future of extradition with the EU27, to or from the UK.

The Curious Case of Carles Puigdemont—The European Arrest Warrant as an Inadequate Means with Regard to Political Offenses

In contrast to traditional extradition law, the political offense exemption has been abolished within the framework of the European Arrest Warrant (EAW). Notwithstanding its overall success, the EAW does not constitute an adequate instrument with regard to political offenses. In light of the recent case of the former Catalan President, Carles Puigdemont, the abolition has proven to be too hasty and the justificatory force behind the principles of mutual trust and recognition is, with respect hereto, rather limited. The damage caused to these principles by upholding the exemption would be negligible, given the small number of cases—Puigdemont being the first political offender requested under the aegis of the EAW. However, the potential benefits are substantial, given that the exemption provides for a higher level of human rights protection—analogous to the values of European Union (EU). Solely relying on the double criminality requirement in order to properly take into account the specificities of the Member States’ legal systems essentially positions the judges at the forefront of where mutual trust and constitutional identity collide. Moreover, the exemption prevents states from intervening in other states’ internal political conflicts, through the medium of criminal law.

Rule of Law vs. Poland and Hungary – an Inconsistent Approach?

The first attempts of the European Commission and Parliament to invoke Art. 7(1) of the Treaty on European Union against the Polish and Hungarian governments demonstrate the EU’s political willingness to claim its own authority in defending core European values (Art. 2 TEU) in case of state disobedience. However, despite these attempts to integrate the Rule of Law concept into the overall EU’s supervisory machinery, the Commission’s and the Parliament’s submissions indicate a lack of coherency in implementing the principle as a relevant tool to address multiple challenges arising within the EU Member States legal systems. The parallel developments in the CJEUs case-law (LM/ML, Torubarov) support this statement. Regardless of the Council’s yes/ no decisions in the Polish and Hungarian cases, these lines of reasoning are capable of giving rise to further questions in application of the European Arrest Warrant Framework decision or the Asylum Procedures Directive, in particular the EU Member States which remain within the scope of the EU’s attention in view of systemic Human Rights violations (Italy, Romania, Bulgaria, Croatia). Moreover, the series of the CJEU’s judgements on the Polish judicial reform are capable of paving the way to the de facto intervention into traditional areas of the EU Member States competence – the organisation of the national judicial systems, in light of the development of a EU-specific principle of effective judicial review.