Police and judicial cooperation in criminal matters - Framework Decision 2002/584/JHA - European arrest warrant issued for the purposes of prosecution - Grounds for refusing execution - fundamental rights review under the EAW Framework Decision 2002/584/JHA - EU law principles of mutual trust and mutual recognition.

The dispute arose before the Court of Appeal of Constan?a, which was requested to admit the execution of four EAWs issued by German authorities against R.C.V. Mr. R.C.V did not consent to his surrender and in order to avoid the execution of the warrants used two instruments.
First, R.C.V. invoked the exception of unconstitutionality of provisions of the national law implementing the EAW Framework Decision 2002/584/JHA. He argued that these provisions violate Art 23(5) of the Constitution (preventive arrest during criminal investigations) and Art 24(1) (the right to a fair trial), as well as Art 6(3) ECHR concerning the rights of the accused. The reason for this, he claimed, was that the national judge is extremely limited in executing the EAW, since the national judge can assess only the form and content of the warrant. The Court of Appeal of Constanta seized the Constitutional Court and suspended the trial until the issue of the constitutionality review decision.
The Constitutional Court rejected the exception of unconstitutionality by decision no.1290/14.10.2010. In its reasoning the Constitutional Court held that a contrary decision would breach the principle of mutual recognition of criminal judgments. The constitutional review also found that a provisional custody following the issue of an EAW satisfies the requirements of the right to liberty and right to a fair trial as guaranteed by the Constitution. The case was returned to the Court of Appeal.
Second, R.C.V. requested the Court of Appeal of Constanta to refer a preliminary reference to CJEU. The defendant asked the national court to ask CJEU whether national courts have the right to decide on the conformity of EAW with fundamental rights and, if this is not the case, to refuse execution, even if such a cause of refusal is neither provided by the Framework Decision 2002/584/JHA nor by the national implementing law.

The Court of Appeal of Constanta upheld the request and referred six questions, which raised essentially three issues:

• whether the Charter and the ECHR form part of primary EU law;
• the relationship between Article 5 of the ECHR and Art 6 of the Charter, on the one hand, and the provisions of the EAW Framework Decision 2002/584/JHA, on the other hand;
• whether the executing judicial authority can refuse to execute the EAW in the event of fundamental rights violations. 

The CJEU by judgment of 29 January 2013 of Grand Chamber (C-396/11) held that the Charter does not allow a refusal to execute an EAW on the basis that the requested person was not heard by the issuing authority.