European Arrest Warrant BULGARIA
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.
This principle states that if a judicial act has been issued in an EU Member State, it must be recognized in all other Member States as such and has the same legal consequences.
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:
- 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, 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.
- 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.
The legal procedures of 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 (details of the requested person, contact details of the issuing authority, time and place of the offense, etc.). 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 Neighborhood 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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