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The Impact of COVID-19 on European Arrest Warrants: Recent Romanian Case-Law

The Impact of COVID-19 on European Arrest Warrants: Recent Romanian Case-Law

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The pandemic caused by the new coronavirus (SARS-CoV-2) has profoundly challenged all justice systems, including Romania’s. The country’s judicial bodies had to quickly assimilate and implement numerous special measures instituted as a result of the state of emergency, followed by the state of alert that was declared at a national level.

International cooperation in criminal matters is perhaps especially relevant in this new state of affairs as a result of the closing of domestic borders to prevent the spread of COVID-19. Accordingly, this article aims to present the impact of the current epidemiological risks on the execution of European arrest warrants (EAW) by Romanian judicial authorities, as reflected in recent case-law from the Romanian competent courts. 

Pandemic Risks as Grounds for Non-Execution of EAW.

Our review of case-law reveals that invocations of pandemic risks as grounds for non-execution of EAW were generally unsuccessful. For instance, in one case, it was expressly held that invoking poor prison conditions in connection with the contamination of the area where the requested person would be surrendered were not considered valid grounds to refuse to execute the EAW, especially since allegations were not proven in any way by the requested person. As such, the challenge to the ruling by the Timisoara Court of Appeal that the requested person be surrendered to Italy was dismissed by the Hight Court of Cassation and Justice (HCCJ, Criminal Division, decision no. 170/2020). 

Pandemic Risks as Grounds for Postponed Surrender

However, in quite a few instances, the Romanian courts ordered the surrender of requested persons postponed.

Romanian Law no. 302/2004 on international judicial cooperation in criminal matters, as republished in May 2019, provides under Art. 114(1) with reference to Art. 58(2)(c), that the surrender may be postponed, among other reasons, when, on account of special circumstances, the immediate surrender would have serious consequences on the surrendered person or their family. Such postponement may only be ordered once and for a duration of three months at most. Hence, based on these provisions, this ground for postponed surrender was considered justified by some courts.

Specifically, these courts noted that the exceptional state of affairs caused by the COVID-19 pandemic may be construed as representing a special circumstance that would cause the immediate surrender to have serious consequences on the health of the requested person. Moreover, considering the state of emergency instituted in both Romania and Italy and the temporary ban on flights, the immediate enforcement of the EAW issued was not considered possible (Bucharest CA, 2nd Criminal Division, judgement no. 56/2020; similar rulings include: Galati CA, Criminal and Minor-Related Division, judgements nos. 49/2020, 64/2020, and 65/2020). 

By contrast, other courts deemed there were no explicit provisions under Romanian law exactly suitable for the current pandemic circumstances. But while this apparent procedural void prevented one court – Ploiesti CA – from ordering surrender postponed, and ordering the execution of the EAW issued by France instead – which was not reversed by the HCCJ in the appeal phase (decision no. 194/2020), another court (Alba Iulia CA, Criminal Division, judgement no. 26/2020) held that the most appropriate legal mechanism to be applied domestically was the very one provided under EU law.

Consequently, the Alba Iulia CA judge relied on the indirect effect of Art. 23(4) of FWD 2002/584/JHA relating to temporary postponement for serious humanitarian reasons and interpreted the Romanian law in accordance therewith. It was added that this procedural option was due to procedural economy and utility reasons, as a surrender would be entirely ineffective in the pandemic context, considering the legal time-limits required to carry out this procedure. Moreover, the same court stated that, by adopting this solution, the issuance of a new EAW will no longer be necessary and there are sufficient guarantees for the enforcement of the EAW issued by the German authorities once the causes for suspension have ceased – namely, when the restrictions have been lifted.   

In light of the examples indicated above, it appears that Romanian case-law relating to the execution of EAW when COVID-19-related risks arise still needs time to stabilize, so that a predictable approach be reached to some extent, especially when identifying the applicable legal grounds.

By Mihai Mares, Managing Partner, Mares & Mares

This Article was originally published in Issue 7.6 of the CEE Legal Matters Magazine. If you would like to receive a hard copy of the magazine, you can subscribe here.

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