The legal framework regarding the EAW in Romania is Law no. 302/2004 on international judicial cooperation in criminal matters, republished in 2011. Under this law, the European arrest warrant is defined as a judicial decision by the means of which a competent judicial authority of a Member State of the European Union requires the arrest and surrender by another Member State of a person for the purpose of prosecution, trial or execution of a sentence or measures involving deprivation of liberty.
The execution of a European arrest warrant is based on the principle of mutual recognition and trust.
In case a preventive arrest warrant or enforcement of penalty can not be accomplished because the defendant or the convicted is no longer in Romania, the court that issued the warrant for preventive arrest or the executing court, by the resolution of the prosecutor, issues an international search warrant for extradition. The law provides that, in this situation, a European arrest warrant is issued whenever the prescription of the criminal liability or the execution of the sentence, the amnesty or the pardon didn’t take place, and one of the following conditions is met:
▪ the penalty provided by law is at least one year, if the arrest and surrender are requested in order to exercise criminal investigation or a trial;
▪ the sentence or the measure involving the deprivation of liberty applied is of at least 4 months, if the arrest and surrender are requested to serve the sentence or the measure involving the deprivation of liberty.
The European arrest warrant is issued, during the stage of the criminal investigation, by the judge appointed by the presiding judge who would have jurisdiction to hear the merits of the cause and, during the trial and execution, by the judge appointed by the president of the first instance or the president of the enforcement court.
The competent judge will proceed with the verification of the conditions mentioned above, and he will either: issue the European arrest warrant and supervise taking the necessary measures for its submission or to conclude that the conditions necessart for issuing a European arrest warrant aren’t being met. This conclusion may be appealed.
Before proceeding to the enforcement of the European arrest warrant, the warrant will be transmitted to the competent authorities. Thus, if the whereabouts of the requested person are known, the Romanian issuing judicial authority may send the European arrest warrant directly to the executing judicial authority, the issuing judicial authority being able to request the introduction of the description of the concerned person in the Schengen Information System (SIS) . This report, accompanied by particular information, is equivalent to a European arrest warrant.
If the whereabouts of the concerned person are unknown, the communication of the EAW is done through the Center for International Police Cooperation of the General Inspectorate of the Romanian Police, that proceeds to broadcast through SIS or the channels of the International Organization of Criminal Police (Interpol).
If the issuing judicial authority does not know the executing judicial authority, it will conduct the necessary research, including through the contact points of the European Judicial Network or the specialized department of the Ministry of Justice in order to obtain the necessary information from the Member State of enforcement.
Regarding the enforcement, the law provides that certain crimes, irrespective of the names they have in the issuing state’s law, if sanctioned by the law of the issuing State by a penalty or a measure involving the deprivation of liberty of a maximum period of at least 3 years, will not be subject to verification of the dual criminality conditions. As an example, we can mention: terrorism, human trafficking, corruption, fraud, murder, rasism, organized or armed robbery etc. For acts other than those specifically determined by law, the surrender will become available if the acts motivating the issuing of the European arrest warrant are criminal offenses under Romanian law, regardless of their elements or their legal classification.
After fulfilling certain preliminary procedures relating to the specific verification of the conditions, the judge verifies the identity of the concerned person and ensures that the person was served with a copy of the European arrest warrant and that he/she was informed about the reason of the detention.
If the surrender of the concerned person is conditioned by the consent of another Member State or a third State, the necessary measures for catching the person will be taken at the date of the receipt of the concerned State’s consent.
If the person was detained, the judge may order the arrest of the person or to not leave the city for a period of 5 days. In this case, the court adjournes the case and sets out a period of 5 days for the submission of the EAW by the prosecutor.
After receiving the European arrest warrant, the judge informs the person of their rights and the possibility of consenting to surrender to the issuing judicial authority.
If the European arrest warrant was issued against a Romanian citizen regarding the execution of a sentence or a measure involving the deprivation of liberty, the judge asks the concerned person if they agree to execute the sentence or the measure involving the deprivation of liberty in the issuer Member State.
If the person declares that they agree to their surrender, the consent will be recorded in a signed statement, and the judge will be able to pronounce the sentence regarding the arrest and surrender of the concerned person.
If the person does not consent to the surrender to the issuing judicial authority, the procedure of execution of a European Arrest Warrant will continue with the hearing of the person, which is limited to recording their position towards the existence of one of the mandatory or optional reasons for non-execution, as well as possible objections regarding the identity.
The court regularly verifies, but not later than 30 days, if the maintenance of the arrest for surrender is still necessary. In all cases, the arrest measure for surrender can only be taken after hearing the person in the presence of the lawyer. The initial period of arrest can not exceed 30 days and the total duration, up until the surrender to the issuing Member State, may not exceed 180 days in any case.
If the person is liberated, the court has to rule the measure of obligation to not to leave the city. In this case, in the event that the court subsequently orders the enforcement of the European Arrest Warrant, the arrest of the person for their surrender to the issuing judicial authority will also be ruled by the decision of surrender
After drawing up the judgment on the arrest warrant, the judge will immediately issue an arrest warrant.
The surrender is made by the Centre for International Police Cooperation of the General Inspectorate of the Romanian Police, with the support of the police unit across whose jurisdiction the place of detention is found, within 10 days from the date the decision to surrender becomes final.
Under the law, the arrested person has the right to be informed on the content of the European arrest warrant, to be assisted by a lawyer elected or appointed by the court and, in case they do not understand or speak Romanian, the right to an interpreter provided freely by the court.
For detailed information regarding the European arrest warrant, do not hesitate to consult the list of attorneys within the Darie, Manea & Associates law firm, who will provide specialized legal advice and representation before the competent authorities when appropriate.