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The mechanism of the surrender of wanted persons on the territory of the Europen Union experienced a natural evolution over time with the construction of European integration and the development of the area of freedom, security and justice. Starting from the traditional difficult extradition procedures in which the political factor was decisive, it was now established a judicial procedure under the jurisdiction of independent and impartial courts, in which only legal criteria are intended to be applicable, with the total exclusion of political decision-makers. Given that the European Arrest Warrant (EAW) is based on mutual trust between the judicial authorities of the member states, it works in the vast majority of cases. However, the principle of mutual trust between member states is not an absolute one and has encountered some limitations, allowing the refusal to execute the European arrest warrant in certain situations, in which the concrete violation of the right to a fair trial or the suffering of degrading and inhumane treatments would be found. [ABSTRACT FROM AUTHOR]

The European Union (EU) increasingly develops and implements policies infused with salient and sometimes conflicting values – for instance, in migration and criminal law cooperation. However, policy implementation studies have not frequently considered how such complex value trade-offs may affect practical implementation within Member States. This article therefore quantitatively and temporally examines the practical implementation of an EU flagship criminal law measure: the simplified extradition system known as the European Arrest Warrant (EAW). Using data on EAWs decided upon by the Dutch Amsterdam District Court, we test the impact of value trade-offs by examining whether (newly introduced) safeguards for the protection of requested persons adversely affect system efficiency (measured through case turnover times). The results suggest that the design of legal tests and adjustments made to the EAW system over time through the Court of Justice of the European Union affect the balance between fundamental rights protection and efficiency in the practical implementation of the EAW. [ABSTRACT FROM AUTHOR]

No cooperative scheme in EU law has displayed bigger tensions between mutual trust and fundamental rights protection than the EAW system. Despite the requirement developed by the CJEU for national courts to trust each other and recognise each other’s arrest warrants, the reality on the ground has shown high levels of distrust between national courts regarding Member States’ alignment with core EU values. In this contribution, we analyze how the CJEU has managed such tensions in the EAW system. To that effect, we first put the Court’s EAW case law into context by examining the broader language of mutual trust used by the Court in other fields of EU law. In doing so, we point out how the Court has espoused different levels of lawful distrust to be exercised in different circumstances under the scope of application of mutual trust. Given that broader context, it is contradictory for the Court to mainly view mutual trust as a requirement rather than a reality in need of permanent and continuing justification between national authorities. The latter conception of mutual trust is more apt to be the basis of EU horizontal cooperation, which must be value-based and sincere according to the Treaties. Therefore, we propose a bidimensional account of mutual trust as a legal principle, one that accommodates both trust and distrust as tools for managing the uncertainty and dynamic nature of trust-based cooperation. Finally, we explore how such account of mutual (dis)trust can be concretised by the Court and other political institutions.

No cooperative scheme in EU law has displayed bigger tensions between mutual trust and fundamental rights protection than the EAW system. Despite the requirement developed by the CJEU for national courts to trust each other and recognise each other's arrest warrants, the reality on the ground has shown high levels of distrust between national courts regarding Member States' alignment with core EU values. In this contribution, we analyze how the CJEU has managed such tensions in the EAW system. To that effect, we first put the Court's EAW case law into context by examining the broader language of mutual trust used by the Court in other fields of EU law. In doing so, we point out how the Court has espoused different levels of lawful distrust to be exercised in different circumstances under the scope of application of mutual trust. Given that broader context, it is contradictory for the Court to mainly view mutual trust as a requirement rather than a reality in need of permanent and continuing justification between national authorities. The latter conception of mutual trust is more apt to be the basis of EU horizontal cooperation, which must be value-based and sincere according to the Treaties. Therefore, we propose a bidimensional account of mutual trust as a legal principle, one that accommodates both trust and distrust as tools for managing the uncertainty and dynamic nature of trust-based cooperation. Finally, we explore how such account of mutual (dis)trust can be concretised by the Court and other political institutions. [ABSTRACT FROM AUTHOR]

The present study had as its starting point a recent decision of the European Court of Human Rights pronounced under Article 39 of the Court Regulation1 on a request to adopt a provisional measure, formulated by a Romanian citizen. This decision represents an opportunity to reflect not only on the vision of the European Court of Human Rights regarding the strictness of adopting some measures to prevent the risk of subjecting a person to ill-treatment, but also in relation to the institution of the European arrest warrant, in particular, with the possibility of removing its immediate effects based on the protection provided by Article 3 of the (European) Convention for the Protection of Human Rights and Fundamental Freedoms and Article 4 of the Charter of Fundamental Rights of the European Union. [ABSTRACT FROM AUTHOR]

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]

This paper aims to bring to attention certain optional reasons for refusing the execution of a European arrest warrant, situations in which the courts can defeat the principle of mutual recognition and trust between the judicial authorities of the European Union states, which represents the “cornerstone” of judicial cooperation in criminal matters. The judicial enforcement authorities cannot refuse to execute a European arrest warrant except for reasons resulting from the Council Framework Decision No. 2002/584/JAI of 13 June 2002, however, in practice, the optional reasons for non-execution often raised problems, the wording of article 4 and article 4a leaving a margin in the judgment of the courts.

The European instrument for judicial cooperation in criminal matters, the European Supervision Order, represents an unexploited potential of application that could provide an alternative to the leading cooperation instrument, the European arrest warrant. The use of non-custodial measures may not only strengthen cooperation between Member States, but also increase the dynamics of the whole procedure. Current judicial cooperation is assessed in this Article in the light of the principle of proportionality of the use of preventive measures in general. An important interpretative guide in this respect is the rule tightening the criteria for recognising the possibility of enforcing a custodial measure developed by the Court of Justice of the European Union in the Aranyosi & Căldăraru case. This judgment is of great importance for the principle of mutual recognition, the application of which seems to be strengthened in the judgments of the Tribunal issued in the dispute over the reform of the Polish judiciary system. Therefore, non-custodial measures that form the core of the European Supervision Order, according to the authors, can be a remedy for the challenges that have arisen. The instrument will also be discussed from the point of view of the criterion of efficiency, interpreted, inter alia, as ensuring equal implementation of the objectives of the procedure.

(Series Information) European Papers - A Journal on Law and Integration, 2023 8(2), 547-559 | European Forum Insight of 22 September 2023 | (Table of Contents) I. Does the Aranyosi and Caldararu test represent the sole and unchanging solution to fundamental rights issues in the EAW system? - II. The Aranyosi and Caldararu test remains unchanged: the ECJ ruling in Puig Gordi - II.1. Facts of the case and preliminary questions - II.2. The Court’s reasoning - III. The Aranyosi and Caldararu test is not the only answer to fundamental rights issues in the EAW system: The ECJ ruling in E. D. L. - III.1. Facts of the case and preliminary question - III.2. The Court’s reasoning - IV. Commentary: towards a renewed understanding of the Aranyosi and Caldararu test - IV.1. Two cases, two approaches: why? - IV.2. The ultimate (but not the only) remedy for securing fundamental rights - V. Conclusions | (Abstract) This Insight offers a combined reading of the ECJ rulings in Puig Gordi and E. D. L., with a view to investi-gating their impact on the theorisation and place of the Aranyosi and Căldăraru test in the EAW frame-work. Notwithstanding multiple calls for overcoming that twofold assessment, the Court has strenu-ously upheld the test’s structure in subsequent case-law. Against this background, the Puig Gordi and E. D. L. rulings give further insight into the ECJ's approach towards securing fundamental rights in the EAW system. On the one hand, the Court in Puig Gordi has halted any aspiration to modify the Aranyosi and Căldăraru test; on the other hand, the E. D. L. ruling clarified that the test does not constitute the only avenue to protect the defendant’s fundamental rights. In this light, the Insight shows that the Aranyosi and Căldăraru test shall be construed as the ultimate remedy to that aim. Executing authorities shall undergo the two-step assessment only if the EAW Framework Decision does not afford any alternative legal avenue to avoid serious risks of violation of the defendant’s fundamental rights. This approach is likely to project the fundamental rights discourse in the EAW context to a new dimension. The ECJ’s ex-plicit refusal to modify the Aranyosi and Căldăraru test may dissuade further calls in that direction. Con-versely, the ECJ reasoning discloses that the EAW Framework Decision may afford valuable and under-estimated alternatives to the two-step test, whose potential still needs to be explored.

The article discusses the role for systemic and particular deficiencies in EU criminal law. It does so by analyzing in depth that law as regards the European Arrest Warrant (EAW), but also across measures of EU criminal law that have not yet been explored under this light. While the attention of the literature has been mainly on the EAW and the way those deficiencies can led to refusing the execution of the warrant, a wider assessment reveals the existence of a latent law of the systemic and the particular in this field. The conclusions reveal that the understanding and application of systemic and particular deficiencies in EU criminal law have significant implications in terms of the principle of mutual trust and the complex interaction between different EU values.

Copyright of Legal Studies / Studia Prawnicze is the property of Polish Academy of Sciences, Institute of Legal Studies and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

Copyright of Macedonian Journal for Criminal Law & Criminology is the property of Macedonian Association for Criminal Law & Criminology and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

Unlike the traditional form of extradition of sought persons, that was a long and complex process that did not achieve the wanted effects, the European Arrest Warrant, as a simplified form of surrendering of sought persons, has enabled free and swift flow of judicial decisions in the criminal matters in the field of freedom, security and justice. This is a legal institute of international judiciary aid that includes a high level of trust and mutual recognition between the European Union member states, based on the EU Council Framework Decision of 13 June 2002 on the European Arrest Warrant and the surrender procedures between Member States 2002/584/PUP. The European Arrest Warrant stipulates, among others, the reasons for compulsory and facultative non-performance of the European Arrest Warrant, and the possibilities of temporary postponement of surrendering the sought person for serious reasons, where there is a possibility of compromising the person’s health or life (serious humanitarian reasons). In this context the author analyses, through the Croatian and the European court cases, various situations that may occur at temporarily postponing surrendering a sought person for serious humanitarian reasons. Furthermore, the author suggests solutions of various disputed questions, such as how long a temporary postponement may last, what options judicial authorities have if humanitarian reasons are expected to last longer periods of time or even permanently, and like.

The article will evaluate the current state of UK-EU police and criminal justice cooperation and its implications for UK criminal justice policy. The article will place current developments within the broader historical and constitutional context of the ambivalent UK participation in the EU area of criminal justice before Brexit and highlight the significance of criminal justice and police practitioners in shaping UK European policy in the field. The article will map the constitutional evolution of the UK position in the field and assess the relevance of pre-Brexit challenges to the post-Brexit era. Looking at both how UK policy has been influenced – and has in turn influenced – EU criminal justice policy, the article will evaluate the provisions of the TCA and focus on key current challenges, including the constitutional constraints underpinning UK participation in EU police and criminal justice structures after Brexit, the challenge of regulatory divergence in the field (in particular regarding data protection) and the development of mutual trust and credible benchmarks of collaboration (including compliance with European human rights norms) after Brexit. [ABSTRACT FROM AUTHOR]

The Act of 7 July 2022 amending the Act – Criminal Code and certain other acts introduced into the Criminal Code the possibility of imposing a sentence of life imprisonment without parole. The legislator provided for two grounds for the optional imposition of an irreducible life imprisonment sentence. The first of them (Article 77 § 3 of the Criminal Code) is based on formal grounds: previous conviction for a specific type of crime (against life and health, freedom, sexual freedom, public security or of a terrorist nature) to life imprisonment or imprisonment for a term of not less than 20 years. The second ground (Article 77 § 4 of the Criminal Code) operates on a substantive condition: that the nature and circumstances of the act and the personal characteristics of the perpetrator indicate that the perpetrator’s remaining at liberty will cause a permanent danger to the life, health, freedom or sexual freedom of others. The thesis of this article is that the provisions of Article 77 § 3 and 4 of the Criminal Code are incompatible with Article 3 of the ECHR, which prohibits torture and inhuman or degrading treatment or punishment and that, as a result of the introduction of this type of punishment in Polish law, we may unfortunately realistically expect the refusal of other states to hand over those prosecuted for crimes punishable by such punishment or sentenced to such punishment. [ABSTRACT FROM AUTHOR]

The article discusses the role for systemic and particular deficiencies in EU criminal law. It does so by analyzing in depth that law as regards the European Arrest Warrant (EAW), but also across measures of EU criminal law that have not yet been explored under this light. While the attention of the literature has been mainly on the EAW and the way those deficiencies can led to refusing the execution of the warrant, a wider assessment reveals the existence of a latent law of the systemic and the particular in this field. The conclusions reveal that the understanding and application of systemic and particular deficiencies in EU criminal law have significant implications in terms of the principle of mutual trust and the complex interaction between different EU values. [ABSTRACT FROM AUTHOR]

(Series Information) European Papers - A Journal on Law and Integration, 2022 7(3), 993-1004 | European Forum Insight of 3 January 2023 | (Table of Contents) I. Introduction. - II. Facts of the case and preliminary questions. - III. The Court's response. - IV. KL v Grundza: stronger demand for flexibly assessing double criminality. - IV.2. The irrelevance of a partial lack of double criminality. Towards a flexible, prima facie appraisal of the facts. - IV.3. The marginal role of the principle of proportionality of penalties. - V. Concluding remarks. | (Abstract) The Court of Justice provided a comprehensive interpretation of the dual criminality requirement under Framework Decision 2002/584/JHA when it handed down its judgment in the KL judgment (case C-168/21 Procureur général près la cour d'appel d'Angers ECLI:EU:C:2022:558). The case at hand raised three intertwined legal issues. Firstly, whether the double criminality criterion is fulfilled where the relevant offences in the issuing and executing Member States aim at protecting different legal interests. Secondly, whether an accused person's refusal to surrender could be grounded on a partial lack of dual criminality. Lastly, whether the execution of a European Arrest Warrant may be denied in the event of a supervening disproportion of the penalty due to the said lack of double criminality. This Insight highlights how this ruling allows the executing authority significant flexibility when carrying out a double criminality check, with a view to minimising the applicability of the grounds for refusal in question. Comparing the KL judgment with the only existing precedent, it will be argued that the Court is increasingly oriented towards an abstract assessment of double criminality. A few final considerations will highlight the persistence of an effectiveness-oriented approach to mutual recognition and its exceptions.

The judgment gives the opportunity to focus on the ne bis in idem principle as established at the European Union level. Accordingly, after an analysis of the facts of the case and of the judgment of the Italian Supreme Court, some inquiries on the nature of the principle will pave the way for a critical assessment of the decision's legal reasoning, notwithstanding the correctness of the final outcome. [ABSTRACT FROM AUTHOR]

The authors advocate operational improvement of the European Arrest Warrant system. When applying the judicial cooperation instruments concerning criminal matters, more attention should be devoted to the requirements of proportionality, effective judicial protection, and coherence. The power to issue an EAW should be more circumscribed whereas executing authorities should be allowed more flexibility in the decision making process as far as the execution of an EAW is concerned. The authors conclude by sketching amendments to the legal and practical framework and the efforts required to implement them as well as by addressing the issue of political feasibility. [ABSTRACT FROM AUTHOR]

This article focuses on detention pending surrender, i.e. detention of the requested person in the executing Member State on the basis of the European Arrest Warrant (EAW). It defines the scope of application of Article 5 of the European Convention on Human Rights to such detention and analyses the case-law of the Court of Justice of the European Union on time limits of keeping the requested person in detention in the executing MS as well as on the notion of "the executing judicial authority" entitled to decide on detention pending surrender. Both issues are explored with reference to national law and practice of the Netherlands and Poland. The article provides the answer to the question whether national provisions which limit the duration of detention pending surrender properly reflect the normative content of the framework decision on the EAW. The answer to this question is given with due regard to the standard of protection of the requested person stemming from Article 5 § 1 ECHR and Article 6 of the Charter of Fundamental Rights. Furthermore, the analyses focus on Dutch and Polish provisions concerning the authority entitled to decide on detention pending surrender and their compliance with the CJEU's jurisprudence on the notion of "the executing judicial authority." Recognising that detention is the basic measure for ensuring the effectiveness of surrender, we try to define the limits of its use in the EAW procedure, stemming from the requirements of protection of human rights. [ABSTRACT FROM AUTHOR]

This contribution offers an insight into the legal practice of the Aranyosi test during the EAW proceedings in seven Member States, an outcome of the research conducted during the ImprovEAW Project. Only the executing judicial authorities of some Member States do trigger the test. Member States are roughly differentiated between those having facilities with usually bad or usually good detention conditions, promoting antagonistic relationships instead of equal partnership. The lack of streamlining of the communication when supplementary information is requested, the lack of common standards and approach towards guarantees lead to further misunderstandings and frustration. The findings of this research have revealed the importance of departing from a pure legal understanding of mutual trust and follow a more empirical, experiential or bottom-up concept. Mutual trust is not only a legal concept, but it underpins the legal culture of the cooperation and collegial attitudes of authorities towards one another. This expression of mutual trust remains quite undiscovered: how is miscommunication affecting mutual trust? Do judicial authorities of legal systems express collegiality to one another? How do cultural aspects and preconceived ideas regarding the quality of other legal systems influence mutual trust? Accordingly, some suggestions have been made to improve the cooperation and the establishment of rapport when supplementary information is requested. Finally, I advocate for a more neutral view towards the Aranyosi test. As opposed to considering it as a supervisory mechanism, I have explored the idea of approaching it as a risk management tool: it tackles risks created by mutual trust. Such approach helps both sides to take responsibility to avert ad hoc risks, instead of experiencing Aranyosi as a testing moment. Such approach centres the real problem, i.e. the risks created by mutual trust for individuals and it can stimulate more proactive policy-making in this regard. [ABSTRACT FROM AUTHOR]

Effective implementation of mutual recognition in the Area of Freedom, Security, and Justice requires mutual trust between the Member States. Mutual trust has been eroded in some Member States due to the rule of law crisis. However, it is not only the rule of law crisis, but also the abandonment of the shared values of respect for fundamental rights as well as the differences in the prosecutorial systems of respective Member States, which have caused changes in the perception of the principle of mutual recognition. This paper will examine the evolving approach to the principle of mutual recognition based on the recent Court of Justice of the European Union rulings on the European arrest warrant. The analysis concludes that the CJEU attaches more importance to the protection of the principle of mutual recognition, the prosecution of perpetrators of crime, and the unwavering presumption of respect for fundamental rights by the Member States than to the effective protection of fundamental rights. [ABSTRACT FROM AUTHOR]

This paper aims to bring to attention certain optional reasons for refusing the execution of a European arrest warrant, situations in which the courts can defeat the principle of mutual recognition and trust between the judicial authorities of the European Union states, which represents the "cornerstone" of judicial cooperation in criminal matters. The judicial enforcement authorities cannot refuse to execute a European arrest warrant except for reasons resulting from the Council Framework Decision No. 2002/584/JAI of 13 June 2002, however, in practice, the optional reasons for non-execution often raised problems, the wording of article 4 and article 4a leaving a margin in the judgment of the courts. [ABSTRACT FROM AUTHOR]

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. [ABSTRACT FROM AUTHOR]

This contribution offers an insight into the legal prac­tice of the Aranyosi test during the EAW proceedings in seven Member States, an outcome of the research conducted during the ImprovEAW Project. Only the executing judicial authori­ties of some Member States do trigger the test. Member States are roughly differentiated between those having facilities with usually bad or usually good detention conditions, promoting antagonistic relationships instead of equal partnership. The lack of streamlining of the communication when supplementary information is requested, the lack of common standards and approach towards guarantees lead to further misunderstand­ings and frustration. The findings of this research have revealed the importance of departing from a pure legal understanding of mutual trust and follow a more empirical, experiential or bot­tom-up concept. Mutual trust is not only a legal concept, but it underpins the legal culture of the cooperation and collegial attitudes of authorities towards one another. This expression of mutual trust remains quite undiscovered: how is miscom­munication affecting mutual trust? Do judicial authorities of legal systems express collegiality to one another? How do cul­tural aspects and preconceived ideas regarding the quality of other legal systems influence mutual trust? Accordingly, some suggestions have been made to improve the cooperation and the establishment of rapport when supplementary information is requested. Finally, I advocate for a more neutral view towards the Aranyosi test. As opposed to considering it as a supervisory mechanism, I have explored the idea of approaching it as a risk management tool: it tackles risks created by mutual trust. Such approach helps both sides to take responsibility to avert ad hoc risks, instead of experiencing Aranyosi as a testing moment. Such approach centres the real problem, i.e. the risks created by mutual trust for individuals and it can stimulate more proactive policy-making in this regard.

This article focuses on detention pending surrender, i.e. detention of the requested person in the executing Mem­ber State on the basis of the European Arrest Warrant (EAW). It defines the scope of application of Article 5 of the Euro­pean Convention on Human Rights to such detention and anal­yses the case-law of the Court of Justice of the European Union on time limits of keeping the requested person in detention in the executing MS as well as on the notion of “the execut­ing judicial authority” entitled to decide on detention pending surrender. Both issues are explored with reference to national law and practice of the Netherlands and Poland. The article pro­vides the answer to the question whether national provisions which limit the duration of detention pending surrender prop­erly reflect the normative content of the framework decision on the EAW. The answer to this question is given with due regard to the standard of protection of the requested person stemming from Article 5 § 1 ECHR and Article 6 of the Charter of Funda­mental Rights. Furthermore, the analyses focus on Dutch and Polish provisions concerning the authority entitled to decide on detention pending surrender and their compliance with the CJEU’s jurisprudence on the notion of “the executing ju­dicial authority.” Recognising that detention is the basic meas­ure for ensuring the effectiveness of surrender, we try to define the limits of its use in the EAW procedure, stemming from the requirements of protection of human rights.

An effective implementation of mutual recognition in the Area of Freedom, Security, and Justice requires mutual trust between the Member State. Mutual trust has been eroded in some Member States due to the rule of law crisis. However, it is not only the rule of law crisis, but also the departure of the Member States from the shared values of respect for fundamental rights, as well as the differences in the prosecutorial systems of individual Member States, that have caused changes in the perception of the principle of mutual recognition. This paper will examine the evolving approach to the principle of mutual recognition based on the recent Court of Justice of the European Union rulings on the European arrest warrant. The analysis concludes that the CJEU attaches more importance to the protection of the principle of mutual recognition, the prosecution of perpetrators of crime, and the unwavering presumption of respect for fundamental rights by the Member states than to the effective protection of fundamental rights.

The authors advocate operational improvement of the European Arrest Warrant system. When applying the judi­cial cooperation instruments concerning criminal matters, more attention should be devoted to the requirements of proportion­ality, effective judicial protection, and coherence. The power to issue an EAW should be more circumscribed whereas executing authorities should be allowed more flexibility in the decision making process as far as the execution of an EAW is concerned. The authors conclude by sketching amendments to the legal and practical framework and the efforts required to implement them as well as by addressing the issue of political feasibility.

In the framework of the procedure for the execution of the European arrest warrant, as a form of international judicial cooperation in criminal matters, it is necessary to take preventive measures of deprivation of liberty against the person requested by the issuing State. In order not to infringe the right to liberty and security of the requested person, deprivation of liberty through these measures must be carried out in strict compliance with the legal requirements set out in both international documents and domestic legislation of the Member States of the European Union. Compliance with the law can be ensured, however, only by developing clear, predictable legal rules that, as far as possible, do not give rise to different interpretations in judicial practice. From this perspective, starting from the finding of the nonunitary interpretation and application of some provisions of the Romanian special law on international judicial cooperation in criminal matters (Law no. 302/2004, republished), this study addresses the issue of the legal nature of custodial measures ordered prior to the resolution of the request for the execution of a European arrest warrant, respectively prior to the surrender based on a European arrest warrant, ending with a concrete proposal of law ferenda on completing these provisions in order to ensure a unification of judicial practice in the field.

The entry into force of Law No 306/20221 for amending and supplementing Law No 302/2004, on international judicial cooperation in criminal matters, brings more clarity to the legal regime of the most controversial preventive measure ordered in criminal proceedings with an element of foreignness. The Law on international judicial cooperation in criminal matters was successively amended in 2006, 2008, 2013, 2017 and 2021, in order to ensure the transposition into national law of the most important Framework Decisions adopted at European Union level. Although the last amendment to harmonise national legislation was made by Law No 51/20212, the European Commission drew the attention of the Romanian Government to some legal texts of Framework Decision 2002/584/JAI on the European arrest warrant and the surrender procedures between Member States of the European Union, which were not fully or correctly transposed. The changes concerned the unconstitutionality issues raised at the level of provisional arrest and surrender of the person deprived of liberty to the authorities of the requesting State. In addition, the amending law helps to alleviate the controversies encountered in the practice of judicial bodies concerning issues relating to the duration and changes that may occur during the execution of the custodial measure of provisional detention. In this article we aim to analyse the legal regime of provisional detention, in the context of the changes that have occurred in this area, seeking to clarify the most controversial issues raised in the practice of judicial bodies. This study also aims to establish the compatibility between the legal rules laid down in the special law on international judicial cooperation in criminal matters and those laid down in the provisions of the Code of Criminal Procedure, in relation to the institution of preventive measures. The research hypotheses will focus in particular on determining the duration of the deprivation of liberty of persons against whom extradition proceedings and the execution of a European arrest warrant are being carried out, as well as determining, in the light of the relationship established between the provisional arrest measure and the other preventive measures, the possibility of replacing, maintaining, revoking and terminating the measure by operation of law. In addition, the study aims to set out the hypotheses which might be encountered in the practice of judicial bodies, given the underlying legislative inconsistencies. [ABSTRACT FROM AUTHOR]

Copyright of Araucaria is the property of Araucaria-Revista Iberoamericana de Filosofia, Politica y Humanidades and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

The Europeanisation process for criminal law still faces many challenges today. The first of them is the concept of state sovereignty in the matter of criminal jurisdiction. The European arrest warrant (EAW) exemplifies the successful Europeanisation of criminal legal procedure. The EAW has introduced a new principle of so - called, surrendering, to another Member State of the European Union, for criminal prosecution. Unlike extradition proceedings, the whole process of surrendering a citizen pursuant to an EAW rests solely with the courts. No review by an executive body is required, as it is presumed that, if surrendered to another Member State, the surrendered person's rights - in particular, their right to a fair trial will not be jeopardised. The EAW, with its attending surrender mechanism, is thus a signifier of mutual trust between Member States. [ABSTRACT FROM AUTHOR]

The principle of mutual recognition represents one of the brilliant creations of the Court of Justice of the European Union, which has significantly contributed to the achievement of the free movement of goods, in the absence of the approximation of national laws, and which is impressive even today by its depth and vocation to extend to new fields of European integration. Mutual recognition is one of the efficient solutions in order to have unity in diversity and also common objectives to reach. We find the principle of mutual recognition in the sphere of the fundamental freedoms of the internal market and in very different domains of the internal market too. Judicial cooperation in civil and criminal matters uses this principle in order to ensure the free movement of judgements and the effectiveness of criminal proceedings. The application of the principle in very different fields has illustrated its utility, as well as the particularities of each area. By observing these particularities, we can better understand the European integration specificity in various fields and its challenges. Our research is descriptive, explanatory and comparative, being accompanied by the relevant case law of the Court of Justice of the European Union.

Copyright of Ankara Review of European Studies (ARES) / Ankara Avrupa Çalışmaları Dergisi (AAÇD) is the property of Ankara University European Union Research Centre and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

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]

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The paper analyses the European Arrest Warrant which is based on the principle of mutual recognition and the principle of effective cooperation, which represent the foundations of judicial cooperation in criminal legal matters. The authors analyse whether there are obstacles to mutual recognition of decisions and how effective cooperation is when it comes to the European Arrest Warrant. The paper includes the conducted research regarding appeals against the European Arrest Warrant addressed to the Supreme Court and the High Criminal Court of the Republic of Croatia. The aim is to use a random sample to determine which criminal offenses are most often the subject of the European Arrest Warrant, as well as the number of rejections or acceptance of appeals against the European Arrest Warrant. In particular, by using the case study method, cases were analysed in which the appeal was accepted, i.e., to determine the shortcomings of the first instance courts in making decisions. According to the available data, an analysis was performed on the number of issued and executed warrants for individual countries from 2014 to 2018, which shows the functionality of the implementation.

In the framework of the procedure for the execution of the European arrest warrant, as a form of international judicial cooperation in criminal matters, it is necessary to take preventive measures of deprivation of liberty against the person requested by the issuing State. In order not to infringe the right to liberty and security of the requested person, deprivation of liberty through these measures must be carried out in strict compliance with the legal requirements set out in both international documents and domestic legislation of the Member States of the European Union. Compliance with the law can be ensured, however, only by developing clear, predictable legal rules that, as far as possible, do not give rise to different interpretations in judicial practice. From this perspective, starting from the finding of the nonunitary interpretation and application of some provisions of the Romanian special law on international judicial cooperation in criminal matters (Law no. 302/2004, republished), this study addresses the issue of the legal nature of custodial measures ordered prior to the resolution of the request for the execution of a European arrest warrant, respectively prior to the surrender based on a European arrest warrant, ending with a concrete proposal of law ferenda on completing these provisions in order to ensure a unification of judicial practice in the field. [ABSTRACT FROM AUTHOR]

The European Commission has repeatedly attempted to introduce EU legislation on pre-trial detention but has so far met with an overwhelming reluctance of Member States to address the issue. The latest initiative proposes to adopt an EU recommendation on the rights and conditions in pre-trial detention. This article seeks to highlight gaps in the protection of fundamental rights in national arrest warrant proceedings and whether standards on pre-trial detention alone will offer a solution for the full protection of fundamental rights in a cross-border context. It draws the link between the national arrest warrant, the EAW and the responsibility of the issuing state to guarantee the legality and validity of the national arrest warrant. The article finds that currently, compliance of judicial decision-making with the existing ECHR standards on pre-trial detention cannot be presumed in practice. This compliance also cannot be verified in an adversarial and equal judicial process until after the requested person has been surrendered. In the absence of a judicial process to challenge the legality of a national arrest warrant before the execution of an EAW, protection of the requested person's rights and access to an effective remedy remains problematic. [ABSTRACT FROM AUTHOR]

(Series Information) European Papers - A Journal on Law and Integration, 2021 6(1), 211-218 | European Forum Insight of 11 June 2021 | (Table of Contents) I. Introduction and facts of the case. - II. Fine-tuning settled case-law: the Court's judgment. - II.1. The scope of Union citizenship in extradition cases. - II.2. The limits of Member States duty to request additional information from the third State. - II.3. Member States obligation to refuse extradition and conduct criminal prosecution. - III. Conclusive remarks. | (Abstract) Case C-398/19 Generalstaatsanwaltschaft Berlin (Extradition vers l'Ukraine) introduces relevant developments to the case-law on extradition of Union citizens to third countries. The Court of Justice establishes that the rules defined in its previous case-law apply to a Union citizen who has acquired the nationality of a Member State after having moved to another Member State. However, it denies the existence of two further obligations stemming from EU law: namely the duty to request additional information from the third State to enable the home Member State to decide on the surrender of its national for prosecution purposes and secondly, the host Member State's duty to refuse extradition and take charge of the prosecution if admissible under its national law. This Insight analyses the reasoning of the Court and the Advocate General, discusses the case in light of the previous jurisprudence, and offers some reflection on the practical issues arising from the implementation of the "Petruhhin doctrine".

Poland is the leading country in pursuing its own citizens under the European Arrest Warrant (EAW), with the number of EAWs issued between 2005 and 2013 representing one third of the warrants issued by all EU countries (although some serious inconsistencies between Polish and Eurostat statistical data can be observed). The data show that Poland overuses this instrument by issuing EAWs in minor cases, sometimes even for petty crimes. However, even though this phenomenon is so widespread, it has attracted very little academic interest thus far. This paper fills that gap. The authors scrutinise the topic against its legal, theoretical and statistical backdrop. Based on their findings, a theoretical perspective is drawn up to consider what the term ‘justice’ actually means and which activities of the criminal justice system could be called ‘just’ and which go beyond this term. The main question to answer is: Should every crime be pursued (even a petty one) and every person face punishment – even after years have passed and a successful and law-abiding life has been building in another country? Or should some restrictions be introduced to the law to prevent the abuse of justice?

Under the ‘one country, two systems’ policy, the surrender of fugitive offenders between Mainland China and Hong Kong has been debated. This article will frame the debate on the application of traditional extradition rules in Mainland China and Hong Kong by exploring the more recent ‘European Arrest Warrant’ system and the long-standing US interstate rendition system. It thus aims to find a suitable model for Mainland China and Hong Kong. The US interstate rendition system is one domestic system, which seems most appropriate for application to Mainland China and Hong Kong as two regions of the same country. However, this article finds that the US interstate rendition system is too direct and inflexible to be enacted by Mainland China and Hong Kong where the legal situation is more complicated and human rights protection differs. This article argues that the European Arrest Warrant can better address the ‘one country, two systems’ situation of Mainland China and Hong Kong. Mainland China and Hong Kong can learn from the European Arrest Warrant to apply the ‘mutual recognition principle’ and other concrete extradition principles to their own surrender system.

(Series Information) European Papers - A Journal on Law and Integration, 2020 5(3), 1305-1324 | Article | (Table of Contents) I. The importance of defining the concept of an "issuing judicial authority". - II.The unclear purpose of modifying the definition of an "issuing judicial authority" in the second draft Framework Decision on the EAW - III. The broad concept of an "issuing judicial authority" in the case law of the Court of Justice. - IV. The consequences of the case law of the Court of Justice. - V. Final remarks. | (Abstract) Defining the concept of an "issuing judicial authority" in European Arrest Warrant (EAW) proceedings is one of the starting points for formulating the principles of effective judicial protection in emerging "European criminal procedure". There is no potential for this concept to be homogeneous for all instruments of cross-border cooperation in criminal matters, as the EAW mechanism may result in consequences for the individual incomparably more severe than other instruments. The uniqueness of the EAW mechanism has not yet been properly addressed, both by EU legislative policy and in the jurisprudence of the Court of Justice. Given the deficiencies of effective judicial protection of the individual at the stage of issuing the EAW, the principle of mutual recognition seems to have taken too much priority in the approach adopted. The EAW procedure should be more individual-centred at the initial stage, otherwise the national courts executing an EAW will face an ongoing problem with imperfect assessment of the qualities necessary for an "issuing judicial authority". Removing the concept of an "issuing judicial authority" from the procedural autonomy of Member States, and placing it within the scope of the EU's minimum standards on effective judicial protection of the individual could be helpful in solving this problem.

(Series Information) European Papers - A Journal on Law and Integration, 2020 5(3), 1251-1269 | Article | (Table of Contents) I. La question de l'indépendance des juges et des procureurs. - II. L'indépendance comme exigence primordiale pour la coopération judiciaire pénale. - II.1. Une garantie essentielle pour la protection des droits fondamentaux. - II.2. Un gage de confiance mutuelle entre autorités judiciaires. - III. L'indépendance comme exigence conditionnant l'exécution d'un MAE: les limites posées à la confiance mutuelle entre États membres. - III.1. Un risque réel de violation du droit fondamental à un tribunal indépendant justifiant l'inexécution d'un MAE: l'arrêt LM. - III.2. Un lien de subordination à l'égard de l'exécutif non nécessairement invalidant pour l'émission d'un MAE: l'arrêt OG et PI et ses suites. - IV. Conclusion. | (Abstract) As a core requirement of the fundamental right to a fair trial, judicial independence is of fundamental importance to ensure the proper conduct of criminal procedure and to uphold the rule of law. In this respect and despite their distinctive status, it is essential that national judges and prosecutors can act without influence during their mission. The requirement of independence has recently received increasing attention at EU level, notably in the context of the European Arrest Warrant mechanism following a series of preliminary rulings. This Article analyses the requirement of independence in the light of recent Court of justice rulings concerning judges and prosecutors, two key players in the criminal procedural law and judicial cooperation in criminal matters.