MASTER THESIS Titel der Master Thesis / Title of the Master‘s Thesis European Arrest Warrant verfasst von / submitted by Madalina Covrig angestrebter akademischer Grad / in partial fulfilment of the requirements for the degree of Master of Laws (LL.M.) Wien, 2017 / Vienna 2017 Studienkennzahl lt. Studienblatt / A 992 628 Postgraduate programme code as it appears on the student record sheet: Universitätslehrgang lt. Studienblatt / International Legal Studies Postgraduate programme as it appears on the student record sheet: Betreut von / Supervisor: Univ.-Prof. ret. Dr. Gerhard HAFNER Contents I. Introduction ................................................................................................................................. 3 II.Judicial Cooperation in Criminal Matters ................................................................................... 7 1.Case-study. Framework Decision in Belgian Criminal Law ............................................ 10 1.1. Principles of Judicial Cooperation ...................................................................... 13 1.1.1.Prevalance of International Law .................................................................... 14 1.1.2.Ne bis in idem .......................................................................................... 14 2.Judicial assistance in criminal matters .............................................................................. 19 2.1.International letter rogatory.Romanian Criminal Law .............................................. 21 III.Applicability of the European Arrest Warrant ......................................................................... 25 IV.The Role of the European Union in the judicial cooperation in criminal matters ................... 27 1.The presence of the European Union in the judicial cooperation in criminal matters .. 30 1.1.European Judicial Network .................................................................................... 30 1.1.1.Contact Points ................................................................................................ 31 1.1.1.EJN Meetings ................................................................................................. 32 1.2.Eurojust ................................................................................................................... 32 2.European Arrest Warrant and the protection of Human Rights .................................... 33 2.1.Instruments of the European Union on fundamental rights ............................. 36 3.The Stockholm Programme........................................................................................... 37 V. Differences between Extradition procedures and the European Arrest Warrant ..................... 42 1.1.Extradition. Brief History ........................................................................................... 42 1.2.Transition from Extradition to EAW ......................................................................... 44 a)Principle of Proportionality .................................................................................. 46 b)Principle of Mutual Recognition .......................................................................... 49 c)Principle of double-criminality ............................................................................ 51 d)Extradition v. Surrender ....................................................................................... 54 VI.Grounds of refusal for extradition ........................................................................................... 55 1.Case-study.Statute-barred crime. ......................................................................... 58 2.Withdrawal or refusal of an European Arrest Warrant. Romanian Law .............. 59 VI.Conclusion ............................................................................................................................... 61 2 I. INTRODUCTION The spread of cross-border crimes has been one of the most important issues with which states all over the world had faced along history. The matter of cross-border criminality, ironically, had increased once states had committed themselves in supporting each other through bilateral or multilateral treaties or agreements that represented for the state parties an environment with less restrictions and barriers politically, economically and judicially and this lack of barriers had encouraged people to easily resort to illicit acts as well. This was also the situation when the European Union was created, starting from the period of time where the pillar system was still applicable in the European Community and ever since then, the European Union has started to work on problems of international criminality, mainly through its third pillar (PJCCM). The first step of the Union was the adoption of the extradition procedures, marked by the European Convention on Extradition from December 13, 1957, lately analyzed by the Additional Protocol to the European Convention of Extradition from October 15, 1975 together with the Second Protocol on the same Convention signed in 1978, March 15. Unfortunately, the extradition procedures, were not that effective as expected because of their long time of execution and mostly because they were seen as a sovereign acts because, in contrast to the European Arrest Warrant, the government of the executing state had the only and final word and was a long process until the surrender was executed in the end, if the requests were accepted. In 2002, a new legal tool for facilitating the surrender and prosecution in criminal matters within the European Union, was adopted. The European Arrest Warrant is the product of the work attributed to the Council to the Framework Decision 2002/584/JHA adopted in June, 2002. This new procedure has been seen as a positive change from the Member States of the European Union and a potential strong instrument for a better strategy in order to combat cross-border crimes. The founding of a Union at an European level has had a lot of objectives since its very beginning in order to create a more harmonized political and economic environment for the Member States of the European Union. Even so, there were still encountered thresholds on what concerned judicial cooperation in criminal matters along the Union. Besides the fields covered by the European Communities in a social, economic and political level, the two other pillars of the European Union had a major impact for the international 3 cooperation in Criminal law. The Common Foreign and Security Policy and the Police and Judicial Co-operation in Criminal Matters were useful weapons for the European Union in bringing up to discussion issues of Criminal law and international procedures concerning it. Still the initial framework at that time was frequently coming over thresholds that were slowing down national or international criminal trials at the European Union level. 1 In order to improve this aspect, after many unfortunate worldwide events, one of the highest importance being the terrorist attacks from September 11, in New York, the European Arrest Warrant was implemented among the many other important goals of the European Union. Through this instrument, the European Union wanted to mark one of the “cornerstones”, which is how the European Arrest Warrant is considered to be and additionally to this, the European Union wanted to extend the collaboration tools between the EU Member states regarding the cooperation in criminal matters and its implementation in every national legislation of the Member States. The European Arrest Warrant is the core of the Council Framework Decision on the European Arrest Warrant and surrender procedures between Member States (2002/584/JHA), discussions that took place in Tampere, Finland, in order to establish an easy access to justice and security within the European Union. During the discussions from Tampere, it was emphasized that, to what concerns international cooperation in criminal matters, the extradition proceedings should be replaced by this simple request form, to shorten the normal time of surrender procedures, without bringing any prejudice or affecting the right to a fair trial and respect for human rights of any EU citizen provided in Article 6 of the Treaty of the European Union. The Council of Tampere from 1999 had worked on the development of the principle of mutual recognition procedures, an influence of this initiations being the terrorist attacks from the United States in 2001, as previously mentioned. These attacks led to the increase of international cooperation in criminal matters, to the evolution of judicial cooperation of the European Union having as a legal basis the third pillar: the Political and Judicial Co-operation in Criminal Matters, which was also an influential element of the Framework Decision of the Council. 1 Libor Klimek, European Arrest Warrant ( 2014), p.2 4 The European Arrest Warrant concept was embraced by many lawmakers around Europe, international organizations and other judicial bodies from Member States, since this procedure has significantly shortened the time and the number of procedures in criminal and civil trials. In contrast to the extradition procedures, the European Arrest Warrant implies a period of time of maximum 17 days in cases where the consent is immediately given, and a time of 48 days when the consent from the executing state takes longer, while the extradition procedures could last almost an entire year until the surrender