The Institute of the European Arrest Warrant

The Institute of the European Arrest Warrant in light of the Decision in the Aranyosi and Caladaru cases (C-404/15 and C-659/15 PPU) of the Court of Justice of the European Union.

In its Decision on 5th of April 2016 the CREU confirmed that Member States are obliged to respect the fundamental rights of requested people when considering European Arrest Warrants. Court states that the absolute prohibition on inhuman or degrading treatment or punishment is part of the fundamental rights protected by EU law. Accordingly, where the authority responsible for the execution of a warrant has in its possession evidence of a real risk of inhuman or degrading treatment of persons detained in the Member State where the warrant was issued, that authority must assess that risk before deciding on the surrender of the individual concerned.

In Bulgaria the European Arrest Warrant is governed by the Law on Extradition and European Arrest Warrant. The aim of the European arrest warrant is to aid the fight with international terrorism and organized crime after 10/11/2001. The underlying concept of the EAW is the principle for mutual recognition and existence of minimal standards concerning the fundamental rights of the accused persons. Ultimately, the main goal – fight with crime is attained due to the effective and prompt mechanisms for transfer of the persons subjected to EAW but is this happening at the expence of the fundamental human rights enshrined in the Convention?

According to the Bulgarian Law on Extradition and European Arrest Warrant, the Court shall refuse to execute European Arrest Warrant, if:

1. the offence, which the warrant has been issued for is amnestied in the Republic of Bulgaria and shall enter under its prosecution jurisdiction;

2. has been notified, that the requested person has been sentenced with an entered into force sentence by a Bulgarian court or by the court of a third Member State and the person services or has serviced the penalty, or the penalty cannot be executed as per the legislation of the country where the person has been sentenced for the same offence, which the warrant has been issued for.

3. the required person is under aged as per the Bulgarian legislation.

There is no mention in the Bulgarian Law on Extradition and European Arrest Warrant of grounds for refusal connected with persons’ human rights.

At the same time is not a secret that there are numerous cases against Bulgaria at the European Court of Human Rights in Strasbourg to complain about the conditions in prison cells. Council of Europe anti- torture Committee published report on Bulgaria in 2015. The report concludes that persons detained by the police continue to run a significant risk of being ill-treated, both at the time of apprehension and during subsequent questioning. Further, there has been no progress as regards guaranteeing the practical implementation of the legal safeguards against police ill-treatment. Detained persons often did not receive information about their rights, were not able to notify a third party of their custody and did not benefit from the services of a lawyer from the very outset of their deprivation of liberty.

Even before the Decision of the Court of Justice, there have been instances where German courts have declined to hand over inmates to Bulgaria due to concerns over dire prison conditions.

In light of the above it becomes clear that the Bulgarian legislation needs serious amendments in order to adjust to the standards of securing fundamental human rights of the persons detained.


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