European Arrest Warrant BULGARIA
The European arrest warrant is a judicial decision given in an EU Member State and aims at detaining and surrendering a wanted person from another Member State for the purpose of prosecuting or executing a custodial sentence or a detention order.
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The procedure imposed by the Council Framework Decision of 13 June 2002 (2002/584 / JI) is based on the principle of mutual trust and the recognition of judgments.
The European arrest warrant is a simplified cross-border judicial surrender procedure – for the purpose of prosecuting or executing a custodial sentence or detention order.
A warrant issued by one EU country’s judicial authority is valid in the entire territory of the EU. It has replaced the lengthy extradition procedures that used to exist between EU countries.
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 procedures in order to issue such warrant are initiated with a request by a judicial authority in one EU country to arrest a person in another and surrender them for prosecution, or to execute a custodial sentence or detention order issued in the first country.
The mechanism is based on the principle of mutual recognition of judicial decisions.
In applying the EAW, authorities have to respect the procedural rights of suspects or accused persons – such as the right to information, to have a lawyer, and an interpreter, and to legal aid as stipulated by law in the country where they are arrested.
According to the Bulgarian Law on Extradition and European Arrest Warrant, the Court shall refuse to execute if:
- the offence, which the warrant has been issued for is amnestied in the Republic of Bulgaria and shall enter under its prosecution jurisdiction;
- 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
- 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.
The country where the person is arrested has to take a final decision on the execution of the European arrest warrant within 60 days after the arrest of the person. If the person consents to the surrender, the surrender decision must be taken within 10 days.
The person requested must be surrendered as soon as possible on a date agreed between the authorities concerned, and no later than 10 days after the final decision on the execution of the European arrest warrant.
The surrender procedure based on a European Arrest Warrant is settled at first instance in one of the 28 district courts.
Upon receipt of a European arrest warrant in one of the appropriate ways (mail, fax, e-mail, etc.), the court appoints a court hearing within 7 days of the person’s detention, explaining to him the right to consent handing over to the issuing Member State, and to refuse to apply the principle of specificity.
When the requested person agrees to be surrendered, the court prescribes a restricted procedure for verifying the conditions.
In these cases, for example, the fact that criminal proceedings have been brought in Bulgaria for the same offense referred to in the European Arrest Warrant has no legal significance.
If the requested person does not give his consent to be surrendered to the issuing State, the competent court shall verify whether the European arrest warrant contains the requisite legal details.
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In addition, it is necessary to verify the existence of certain reasons which prevent the transfer of the requested person.
The following grounds for refusal are of particular importance in the case law:
- a judgment which has the force of res judicata for the same act for which surrender is requested by the European Arrest Warrant (ne bis in idem),
- the criminal proceedings in Bulgaria for the same offense were terminated,
- to the Bulgarian legislation the execution of the punishment is expired.
Even before the Decision of the Court of Justice, there have been instances where foreign 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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