Autor: Gheorghe BOCŞAN
Publicat în: Revista Universul Juridic nr.3/2018
Disponibil online: aici.
Abstract:
The European Arrest Warrant (EAW) represents the first and the most successful instrument
of the mutual recognition of judgments and judicial decisions in the area of liberty, security and
justice of the European Union. Though the Framework Decision 2002/584/JHA of the Council
establishes the rules under which EAW operates, a considerable role in the empowerment of this
judicial cooperation instrument pertains to the Court of Justice of the European Union.
Thus, even the fundamental question of the possibility and legitimacy to transform the classical
extradition framework, based upon international law conventions or reciprocity into a mere
surrender procedure between EU Member States, as the Tampere European Council Conclusions of
Presidency highlights was finally decided through the Court of Justice case-law (the Court’s
Judgment in the case C-303/05, preliminary ruling on the question raised by Arbitrgehof in the
proceedings Advocaten voor de Wereld VZW versus Leden van Ministerrad).
This paper analyses 20 cases judged by the Court of Justice linked directly to the EAW validity
and interpretation and 2 cases whose object was ne bis in idem principle, from the perspective of
art. 54 CISA, but constituting binding precedent in the matter of its application in connection with
EAW.
The case-law presentation on EAW was organised in this study according to the themes of the
preliminary questions asked to the Court of Justice by national jurisdictions, such as: validity and
interpretation of the new surrender paradigm, ne bis in idem principle, speciality principle, grounds
for optional non-execution of an EAW, the necessity to respect the fundamental human rights and
liberties, autonomous definition of certain concepts used in the Framework Decision 2002/584/JHA,
nexus between EAW and extradition conventions applicable to a certain case, EAW “chain” and the
meaning of “executing Member State” concept, necessity of a prior and distinct national arrest
warrant upon which the EAW should be based, the physical resistance against the execution of an
EAW etc. The chosen methodology for this case-law analysis is to pursue the reasoning of the Court of
Justice in each case and thus to establish jurisprudential trends and general ideas on interpretation
of EAW framework notions that could be applicable to other myriad of questions arising in this
legal area
Keywords: European Arrest Warrant, EAW, extradition, the principle of mutual recognition
of judgments and judicial decisions, transit, surrender decision, ne bis in idem, speciality,
autonomous definition, the cornerstone of judicial cooperation in criminal matter, grounds for refusal
of execution etc.
