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This paper seeks to analyse the institution of double criminality as a procedural condition for various judicial cooperation procedures in criminal matters in the European legal system. The analytical approach will begin by establishing the legal nature of double criminality, which has been the subject of an extensive legal doctrinal debate. The study will tackle the main arguments presented and will comment on the consequences of each one, establishing why a certain view of double criminality is preferable over another. Next, the author will focus on how the requirement of double criminality is assessed in transnational criminal proceedings, focusing on the in concreto-in abstracto dichotomy, as it has been promoted in the legal literature. This section of the study will be built around the case-law of the Court of Justice of the European Union, which, as it will become apparent throughout the paper, has promoted a view that is not free of inconsistencies in regard to identical issues. The author will try, as well, to discuss the way in which the case law of the European Court and the guiding principles on the assessment of double criminality have been transposed nationally. In addition, the author will analyse the situations in which the double criminality check is abolished, having as a starting point the rationale behind the choice of those specific criminal behaviours. Finally, the author will also consider the possible problems arising in regard to the effectiveness of the cooperation procedures, by trying to establish whether the 32 offences on the list can be harmonised at an European level so as to protect the effectiveness of the cooperation procedures. [ABSTRACT FROM AUTHOR]

A concern at the European level in recent years has been the attempt to increase mutual trust between Member States, in order to streamline the surrender system of those who have been convicted in other states, and therefore, judicial cooperation. This article aims to analyse the problems that arose from the application of the European Arrest Warrant regulations in the case of trials conducted in the absence of the convicted person. To begin with, this paper starts by discussing the general framework of the institution, so that the analysis of the problematic aspects is as clear as possible. The main issues examined concern Article 4a of Framework Decision 2009/299/JHA, namely the optional reason for non-execution of the European arrest warrant issued following a trial conducted in absentia. In the light of the previously analysed aspects, the final section of the study is focused on an examination on the possibility of such a process to be held in Romania as well. [ABSTRACT FROM AUTHOR]

In the present study, we propose an analysis on how the precarious detention conditions in the penitentiaries of the European Union member states play a decisive role in the execution of the European arrest warrant, a fundamental tool in police and judicial cooperation in EU criminal matter. Taking into account the effects that these new impediments have on the principle of mutual trust and recognition, this study also proposes an examination on the nature of this particular reason for the refusal of the execution of an EAW and on the future prospects for judicial cooperation between member states. [ABSTRACT FROM AUTHOR]

The competent judicial authority in Romania can refuse the execution of an European arrest warrant, if it has been issued (during the prosecution) for offenses which, according to Romanian criminal law, are committed on the territory of Romania. However, the incidence of an optional reason for refusal does not by itself preclude the execution. All the circumstances of the case must be examined. The phrase "circumstances of the case" implies various criteria according to which the court rules on the execution of the European arrest warrant. Such a criterion is the place where the prosecution has a better contribution to the resolution of the conflict criminal legal report in its entirety and where the principle of finding the truth is better respected. This place may be located in the requesting State, when the execution is ordered, or in the requested State, when the execution is refused. If the prosecution is carried out in both States, the choice must be made according to benchmarks such as: the State in which there is a bigger certainty that the entire criminal activity will be investigated; the State in which the prosecution is at a more advanced stage; the State in which the evidence is more easily administered. [ABSTRACT FROM AUTHOR]

Mutual trust and mutual recognition are two principles on which the implementation and attainment of the area of freedom, security and justice are based on. The premise of the widespread success of the European Arrest Warrant is that applying these principles and upholding a set of common values allows the member states to offer similar standards in matters of judicial cooperation. In spite of this, cultural and normative differences between countries, as well as deep political transformations in some states have created practical issues which put into question the timeliness and pragmatism of these goals. This paper deals with two important shortcomings of enforcing mutual trust and mutual recognition - using the European Arrest Warrant for trivial offences and the lack of analysis on the merits of the charge within this procedure - as well as the way in which the policies of countries like Hungary and Poland threaten the coherence and uniformity necessary for the operative use of judicial cooperation mechanisms. After a brief review of the means employed by European institutions and member states to resolve these issues, the second part of this paper attempts to find a feasible solution based on the European Court of Justice's case law. [ABSTRACT FROM AUTHOR]

Having appeared as an immediate replacement of the extradition mechanism for the capture and delivery of persons within the territory of the European Union, and as a response to the rapid growth of terrorism, the European arrest warrant (EAW) seemed at first a success story in the field of European criminal law, by being a tremendously efficient tool to combat transnational criminality. However, based on statistical data, it is slowly but surely revealed that the European arrest warrant starts to be perceived as rather abused in its issuance and growingly limited in its execution, highlighting the lack of trust the executing states have concerning the issuing states, lack of trust based on various factors, including the issuing states negative history regarding the respect given to fundamental human rights. These issues result in a disproportion, a gap-zone between the past and future exponentially grown numbers of issued EAWs and the stagnant numbers of executed EAWs. Alongside the European Union's historical events that shaped the (dis)proportion between the issued and executed EAWs, like the inclusion of Romania, Bulgaria and Croatia into the EU, and the future withdrawal of the United Kingdom from the EU, we also find that scholars and practitioners envisioned that the CJEU's case law will suffer from the hidden vices of the EAW's own success, as the CJEU put forward decisions that gave path for executing states to hinder the execution of EAWs in favor of the issuing states that are not trustworthy. This way, building and clinging onto the case law of CJEU regarding the nonexecution grounds of the EAW, the present Member States' mutual distrust shapes a near future in which the execution of EAW's most certainly won't proportionally catch the numbers of issued EAWs. The purpose of this article is to study the gap-zone which primarily reflects the lack of mutual trust between states in the execution of the European Arrest Warrant. Based on a deductive methodology and with the aid of doctrinal, legal and jurisprudential grounds we reach the present conclusions. In the absence of legislative intervention regarding the heterogeneity of EU and the lack of trust between the homogeneous regions we believe that inevitably a paradox is generated: the European arrest warrant will be limited by its own purpose and success. [ABSTRACT FROM AUTHOR]

The Framework Decision on the European arrest warrant and the surrender procedures between Member States was the first concrete measure in the field of criminal law that implemented the principle of mutual recognition, introducing a new simplified system of surrender of sentenced or suspected persons. However, the Framework Decision serves only as a general outline, as it is shaped by national legislators and the judicial authorities that apply it. The Court of Justice of the European Union plays an important role in clarifying and interpreting the Framework Decision through the cases that are brought to its attention in the preliminary ruling procedures. The present study focuses on the case of Ciprian Vasile Radu, in which the Court of Justice of the European Union was, in summary, asked to determine the extent to which Member States are required to take into account fundamental rights when they consider executing a European arrest warrant. The aim of this study is to examine whether or not the role of the Court of Justice of the European Union in interpreting European law and preventing a divergent jurisprudence within the Union was properly fulfilled, and what were the contributing factors. Following the presentation of some aspects regarding the circumstances in which the preliminary reference was made by the Romanian judicial authority, the author analyses the extent to which the form and content of the reference complies with the European legislation. Furthermore, taking into consideration the answer that was given by the Court to four of the questions addressed, the author discusses the Courts tendency towards reformulating the questions referred. A distinct section is dedicated to the issue of whether the judicial authority from the executing Member State can refuse to execute a warrant when infringements of the requested person's human rights are in issue, along with the Court of Justice's case-law on the matter. In the end, the author portrays the effects of the preliminary ruling for the main proceedings and its overall utility. As the study will illustrate, on the one hand, the case of Ciprian Vasile Radu is an example of the importance of a proper dialogue between the Member States and the Court of Justice in ensuring a preliminary ruling that will be useful for the Member States, and on the other hand, it will put into question the Court's ability of achieving its role in insuring a unitary interpretation and application of the law within the Union. [ABSTRACT FROM AUTHOR]

The purpose of this article is to bring to the reader's attention the main mechanisms for international cooperation between the Member States of the European Union. Of course - mainly those who intervene after pronouncing a criminal decision against a person. Along with the creation of the European Common Space and the appearance of the four freedoms, including the free movement of persons, we can observe an increasing possibility for the offenders to escape from the execution of the punishments pronounced. This is why we believe that, the cooperation mechanisms presented aim at ensuring the efficiency of the justice system. Also, through these instruments, an effort is made so as to ensure the respect of the rights of EU citizens, giving them the opportunity to return and execute their sentences in the Member State whose citizens they are. This would result in a reduction of the discrimination that might arise in the execution of a sentence in a foreign state. And of course, the possibility of returning to the Member State of nationality creates for the convicted person a more favourable environment for rehabilitation and social reintegration due to familiarity with their own culture. In this article, we will present the way in which the Romanian legislator transposed the main European normative acts in the field of recognition and enforcement of criminal judgements. We will present the required conditions that are to be met in order to provide the recognition of a criminal judgement, the procedure to be followed for recognition and the effects of the proceedings, according to Romanian law. Finally, we will compare the recognition of convictions concerning deprivation of liberty, the recognition of criminal judgements through which surveillance measures were ordered and the recognition of judgements through which probation measures and alternative sanction were ordered. Even though these mechanisms could give a false impression that for the sanctioned person they could create a more favourable premise for circumventing the execution of sanctions, as we will see later, the European legislator has taken care to clearly regulate the obligations of each of the parties involved in judicial cooperation so as to achieve the social rehabilitation and reintegration of the person subject to certain criminal proceedings. [ABSTRACT FROM AUTHOR]

Despite its operational success, the European Arrest Warrant (EAW) system has been a source of concern regarding its impact on fundamental rights. Issues such as the lack of a ground for refusal based on the risk of breach of human rights and the absence of a proportionality check in the executing state have undermined the credibility of the judicial cooperation system in criminal matters. All of these concerns, expressed by the national judicial authorities, European and national parliamentarians, the civil society and individual citizens, have been followed by proposals for reform. While the Comission refused to ammend the framework decision regarding the EAW, in the domestic and the European case-law, however, the discussion has been focused on exploring the possibilities which the current legal framework offers for sanctioning past and future human rights violations. This will be the main topic of this study, as I present the evolution of the case-law in this field and analyse the admissibility of a ground for refusal based on fundamental rights violations, especially in the context of the prohibition of torture and the right to a fair trial. [ABSTRACT FROM AUTHOR]

The case of Zoran Spasic brings to the Court of Justice of the European Union (CJEU) attention, once again, the principle of ne bis in idem. The CJEU has ruled over the compatibility of the Article 54 of the Convention Implementing the Schengen Agreement (CISA) and the provision of the Charter of Fundamental Rights of the European Union (EU Charter) and the meaning of the enforced sentence. The provisions of the Article 54 of the CISA limit the operability of the principle ne bis in idem to the cases where the enforcement condition has been met. The enforcement condition requires that the penalty imposed "has been enforced", "is in the process of being enforced" or "can no longer be enforce", such a requirement is not stipulated by the Article 50 of the EU Charter. In these conditions, the CJEU has been questioned about the compatibility of the Article 54 of the CISA with the provisions of the EU Charter, and, if so, when a custodial sentence and a fine are imposed as principal penalties, the payment of the fine is sufficient to consider the enforcement condition fulfilled. The Court of Justice held that, even if the enforcement condition constitutes a limitation of the ne bis in idem principle, it is compatible with the EU Charter, the Article 52 of the EU Charter provides the situation in which the rights deriving from the Article 50 of the EU Charter regarding the principle may be restricted. In terms of the second question, the Court held that when a fine and a custodial sentence are imposed as principal penalties, the payment of the fine alone does not satisfy the enforcement condition within the meaning of the CISA. The direct effect of the ruling in the case of Zoran Spasic is that the German authorities can proceed to prosecute again Mrs. Spasic for the offences committed in 2009 for which he has not served the sentence pronounce by the Tribunale ordinario di Milano. As an effect of the Court decision, the enforcement condition provided by the Article 54 of the CISA from now on will be apply to all situations in which the ne bis in idem principle is referred to in a criminal proceeding at a court in the territory of an European Union Member, even if the state is not a member of the Schengen area. By ruling so, the Court has limited the possibility of a person to avoid a custodial sentence by moving jurisdiction in another state. In Romanian criminal law, the enforcement condition has been provided by the Law No. 302/2004 regarding the international judicial cooperation in criminal matters which contains some of the provisions of the CISA including the Article 54. [ABSTRACT FROM AUTHOR]

The purpose of the present research paper is not necessarily to examine the whole matter of the European arrest warrant, but only to emphasize those specific problems arising in practice with the application of this institution. The structure of this scientific approach is represented by a detailed criticism of the current rules on the European arrest warrant in view of the European Commission reports over the implementation of the Framework Decision revealing flaws in the functioning of the system, despite an overall positive examination. Therefore, the main topics addressed in this paper, aims to analyse the method in which the European Arrest Warrant is executed, starting from the analysis that should play grounds for refusal, up to measures that can be taken to implement it. The European Arrest Warrant has reduced the duration of surrender procedures between member states, facilitated the free movement of persons within the European Union and contributed in fighting cross-border crime. However, the automatic mutual recognition underlining the European Area of Justice, Freedom and Security is currently being questioned by concerns about the differences in fundamental rights protection between member states. For instance, studies have shown that there is a different level of protection of procedural rights among the member states and that some judicial authorities do not apply any proportionality test before issuing an European arrest warrant, which leads to European arrest warrants being issued for minor offences. As a consequence, the European arrest warrant Framework Decision has been implemented in diverse ways by the member states. Several initiatives at European Union level are designed to ensure a more homogenous execution across the European Union. Some legislative measures have been taken in order to reinforce mutual trust between member states. [ABSTRACT FROM AUTHOR]

The right to a fair trial explicitly includes the right to be tried in your own presence. This is a key part of the right to defend yourself. There is also a right to defend yourself in person or through legal assistance of your choosing which can only be exercised alongside the right to be present at trial. In the European Court of Human Rights' view, the presence of the accused at their trial is one of the cornerstones of an equitable procedure. ECHR has consistently shown that the possibility of the accused to take part at the hearing results from article 6 of the European Convention on Human Rights, because the guarantees provided by art. 6 paras.3, for example, the right to provide evidence and examine witnesses personally, would be unthinkable without the presence of the accused before the court. The signatory states of the Convention for the Protection of Human Rights and Fundamental Freedoms can prosecute a person in her/his absence, provided he or she unequivocally renounces the right to take part in the proceedings, after a proper citation procedure has been performed. If, however, a state imposes a conviction of a person without observing the conditions stated above, the Court requires the states to ensure the reopening of the proceedings, in which a court has to rule again on the charge, regarding both the facts and the legal aspects of the case, after having heard the person convicted in absentia .. However, the European Court of Human Rights establishes the retrial of cases which were previously judged in absentia as a mandatory rule. The hypothesis of a retrial after conviction in absentia to a custodial sentence, when the convict is brought into the country in an extradition proceeding or the execution of a European arrest warrant, supports certain particular discussions occasioned by the fact that the person is in fact a prisoner. Retrial after an extradition or under a European arrest warrant, found under Article 522¹ from the Criminal Procedure Code is an institution which attempts to cover the flaws which develop at a trial in the absence of the accused but the current legal regulation do not allow this goal to be achieved. The current practice of the Romanian courts is losing sight of exactly the reason why this procedure was regulated in the first place, and that is the result of the poor regulation of this institution. This is why, in our opinion, the remedy for such a poorly regulated procedure is a direct application of the ECHR' jurisprudence and therefore the exclusion of the existing national rules. [ABSTRACT FROM AUTHOR]