Mutual trust

European Arrest Warrant; use of the preliminary reference procedure; judicial cooperation

Court of Justice of the European Union/Curtea de Apel Constanta

Court of Justice of the European Union/Court of Appeal Constanta

C-396/11

29.01.2013

ECLI:EU:C:2013:39

The Judgment of the Court in case C-396/11 Ciprian Vasile Radu represents the response to the request made by a national ordinary court, Curtea de Apel Constanța (Court of Appeal, Constanța, Romania).

Law no. 300 of November 15, 2013, published in Official Gazette of Romania no. 772 of 11 December 2013 provides multiple changes of the European arrest warrant: issuing authority and procedure, transmission for execution and translation of the European arrest warrant; additional information and guarantees; temporary surrender or hearing of the requested person during the European Arrest Warrant surrender procedure; refusal of surrender; procedure on arrest of the requested person – hearing of the requested person; postponed surrender.

Decision of the Constitutional Court no. 712 of December 4, 2014, published in the Official Gazette of Romania, Part I, no. 33 of January 15, 2015 qualified as unconstitutional Articles 211-217 of Romanian Code of Criminal Procedure, articles relevant for the application of Article 104 of the Law no. 302 of 2004 on judicial cooperation in criminal matters: “If the requested person is set at liberty, the court orders against him the measure of judicial control, judicial control on bail or house arrest, the provisions of Art. 211-222 of the Criminal Procedure Code) applying accordingly. In this case, in the situation where, subsequently, the court orders the execution of the European arrest warrant, through the surrender decision, the arrest of the requested person is also ordered to surrender to the issuing judicial authority.”

Police and judicial cooperation in criminal matters — Framework Decision 2002/584/JHA — European arrest warrant and surrender procedures between Member States — European arrest warrant issued for the purposes of prosecution — Grounds for refusing execution’ – fundamental rights

The case deals with the Romanian ordinary courts' dilemmas regarding the relation between the European arrest warrant procedure and respect for the fundamental rights of the person in the context of surrender procedures between Member States in the stage of prosecution. Thanks to the non-uniform interpretations and applications of the Framework Decision 2002/584/JHA at the level of the executing or issuing member states of the warrant, the Court has to decide how much can be extended the principle of mutual recognition for justifying the refusal of the execution of a European arrest warrant. The executing judicial authorities cannot refuse to execute a European arrest warrant issued for the purposes of conducting a criminal prosecution on the ground that the requested person was not heard in the issuing Member State before that arrest warrant was issued.

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Articles 97 and 98 of Law No 302 of 28 June 2004 on international judicial cooperation in criminal matters, republished in the Official Gazette of Romania, Part I, no. 377 of 31 May 2011 Amending documents: Law no. 300 of November 15, 2013, published in the Official Gazette of Romania no. 772 of 11 December 2013; Law no. 236 of December 5, 2017, Published in the Official Gazette no. 993 of December 14, 2017; Law no. 51 of March 26, 2021, published in the Official Gazette no. 310 of March 26, 2021; Law no. 306 of November 16, 2022, published in the Official Gazette no. 1110 of November 17, 2022

Between March 2007 and February 2008, four European arrest warrants were issued by the German authorities against Mr Radu, a Romanian national, for the purposes of prosecution in respect of acts of aggravated robbery. In May and June 2009, the Curte de Apel Constanţa (Court of Appeal, Constanţa) (Romania) was seized of requests made by the German judicial authorities concerning the surrender of Mr Radu, who didn’t consent to his surrender. In the same month, the Curte de Apel Constanţa ordered the execution of three of the European arrest warrants and refused to execute the fourth warrant on the ground that Mr Radu was being prosecuted in Romania before the Tribunal Bacău (Bacău Regional Court) for the same act that warrant was based. It therefore deferred the surrender of Mr Radu pending the conclusion of the proceedings in that case before the Romanian courts, while maintaining the pre-trial detention measure taken against Mr Radu for a period of 30 days. The Înalta Curte de Casație și Justiție a României (High Court of Cassation and Justice, Romania) upheld the appeal and referred the case back to the Curte de Apel de Constanța and ordered the release of Mr Radu, subject to a preventative measure restricting his freedom of movement, prohibiting him from leaving his commune of residence in the city of Bacău, without judicial permission, and placing him under a number of constraints. In February 2011 before the Curte de Apel de Constanța, Mr Radu opposed the execution of the European arrest warrants issued against him using two different techniques: exception of unconstitutionality before the Romanian Constitutional Court and request for a preliminary ruling before the Court of Justice of European Union. The exception of the unconstitutionality made references to several provisions of the Romanian law transposing the Framework Decision on the European arrest warrant, Law no. 302/2004, arguing that they would not allow the Romanian magistrate who decides on the execution of a European arrest warrant to verify certain substantive aspects of the warrant, being limited only to verifying the form and content. The Constitutional Court of Romania rejected the exception of unconstitutionality and ruled firmly in the sense of the impossibility of the Romanian enforcement court to make checks on the validity of the act on which the European arrest warrant is based, such a check can only be made by the courts of the issuing state, where the requested person will also benefit from all existing procedural guarantees. Any contrary solution, the Court noted, would lead to the violation of the principle of mutual trust. Once the case was returned to the Constanţa Court of Appeal, Mr. Radu invoked in his defense the need that the case to be referred to the Court of Justice of the European Union in order to rule on the interpretation of the Framework Decision 2002/584/JAI and to establish whether this allows Member States to refuse the execution of a European Arrest Warrant if they find that there is a risk that the fundamental rights of the person will not be respected in the issuing Member State. As the main argument by which he opposed the execution of the European arrest warrants, Mr. Radu claimed that the judicial enforcement authorities of a member state, when they decide on the execution of a European arrest warrant, must carry out checks regarding the observance of the fundamental rights of to the person in the member state that issued the mandate, having the possibility to refuse the execution of the mandate, in case of violations thereof. In support of his position, Mr. Radu invoked the fact that the Framework Decision, being part of the secondary norms of Union law, should be interpreted and applied in accordance with the rights provided by the Charter of Fundamental Rights of the European Union and the European Convention on Human Rights, which are norms of primary law. The judicial authorities of the executing state should thus check, when deciding on the execution of a European arrest warrant, whether the person's rights are respected in the issuing Member State. If they find that they are not respected, they would have the possibility to refuse the execution of the European arrest warrant, even if this reason for refusal is not expressly provided for in the decision. Mr. Ciprian Vasile Radu also invoked the fact that the Framework Decision was not correctly transposed into German law, the transposition law being declared unconstitutional by the German Constitutional Court, and the execution of the European arrest warrant would be subject to reciprocity conditions.

According to the Grand Chamber, Framework Decision 2002/584 seeks, by the establishment of a new simplified and more effective system for the surrender of persons convicted or suspected of having infringed criminal law, to facilitate and accelerate judicial cooperation with a view to contributing to the objective set for the European Union to become an area of freedom, security and justice by basing itself on the high degree of confidence which should exist between the Member States. The Court reaffirmed that the system of surrender is based on the principle of mutual recognition. Acknowledging that the Member States are in principle obliged to act upon a European arrest warrant, the court admits again that the Member States may refuse to execute such a warrant only in the cases of mandatory non-execution provided for in Article 3 thereof and in the cases of optional non‑execution listed in Articles 4 and 4a, 5 of the Decision. The fact that the European arrest warrant has been issued for the purposes of conducting a criminal prosecution, without the requested person having been heard by the issuing judicial authorities, does not feature among the grounds for non-execution of such a warrant as provided for by the provisions of Framework Decision 2002/584. The Court stated that an obligation for the issuing judicial authorities to hear the requested person before such a European arrest warrant is issued would inevitably lead to the failure of the very system of surrender provided for by Framework Decision 2002/584 and, consequently, prevent the achievement of the area of freedom, security and justice, in so far as such an arrest warrant must have a certain element of surprise, in particular in order to stop the person concerned from taking flight. Before deciding on the surrender of the requested person for the purposes of prosecution, the executing judicial authority must subject the European arrest warrant to a degree of scrutiny. In addition, the Court mentioned that the requested person has the right to legal counsel in the case where he consents to his surrender and, where appropriate, renounces his entitlement to the speciality rule. As well, the requested person, where he does not consent to his surrender and is the subject of a European arrest warrant issued for the purposes of conducting a criminal prosecution, is entitled to be heard by the executing judicial authority, under the conditions determined by mutual agreement with the issuing judicial authorities.

Regarding Article 6 of the Charter of fundamental rights, the Court criticized both the applicant and the referring court for luck of sufficient explanation regarding the infringement of the rights of defense in the member state which issued the arrest warrant that deprived his liberty breaching his rights to defense.

As well, the Court pointed out that the recognition of the right to be heard must lay down currently on the Articles 47 and 48 of the Charter of fundamental rights. Thus, the Court confirmed the validity of the Framework Decision under Articles 47 and 48(2) of the Charter. The CJEU referred to the ECtHR case law and concluded that the right to appear in person at the trial as not an absolute right and that the accused may waive that right, expressly or tacitly, under certain conditions.

Regarding Charter Article 53, the Court acknowledged that state courts may apply national standards of protection of fundamental rights in reviewing national implementing measures, as long as the level of protection provided for by the Charter, and the primacy, unity and effectiveness of EU law are not compromised.

In the resolution of the case, the Constitutional Court referred to the Charter as a hermeneutic criterion for the interpretation of Article 24(2) of the Constitution. Hence, the Charter was not directly enforced, but the Constitutional Court followed the interpretation given by the CJEU to overrule the previous constitutional interpretation of the right to a fair trial.

It has to be underlined that Article 47 of the EU Charter corresponds to Article 13 of the ECHR, while the second paragraph corresponds to Article 6 (1) of the ECHR. Nevertheless, the scope of legal aid under the Charter is broader than under the ECHR, thanks to the explanation of Article 52(3) specifies that “Article 47(3) corresponds to Article 6(1) of the ECHR, but the limitation to the determination of civil rights and obligations or criminal charges does not apply as regards Union law and its implementation”.

Article 48 of the EU Charter corresponds to Article 6, paras. 2 and 3 of the ECHR. As well, thanks to the Article 52(3) of the EU Charter and the related official explanation of the Charter provisions, fundamental rights stipulated in the Charter shall be interpreted as having the same scope and meaning afforded by the ECHR to their correspondents, taking into account also the case law of the European Court of Human Rights. Essential is also that it is recognized a higher level of protection can be granted under EU law, the ECHR assuring only sets a minimum standard of protection for corresponding Charter rights.

Strategic use of the preliminary reference mechanism by the national ordinary courts in order to clarify the independence of the main European human rights documents – European Convention on Human Rights and Charter for Fundamental Rights and the compliance of the primary and secondary European law and national law with their common and general standards; consistent interpretation with the ECHR and Charter articles of the Framework Decision by the national referring court, with reference to different procedural defects of the Framework Decision transposal in national legislation of the States that issue and execute European arrest warrant; referring to the proportionality. Court of Appeal Constanța noted that it is specifically noted that the facts which are the object of the indictment were committed in 2001, in the case, 12 years had passed from the date of the last deed, and in these conditions the disproportion between the purpose pursued by the judicial authorities in the requesting state and the interference in the exercise of fundamental rights requested to be carried out by the Romanian court, as authority judicial enforcement of European arrest warrants; comparative reasoning with German legislation on administration of evidences and reporting the charges concretely formulated to the court which constituted the arguments for the execution of the European arrest warrant.

Romanian courts involved in the procedure adopted two positions: firstly, accepted unconditionally the immediate application of the most important instrument for achieving judicial and police cooperation in criminal matters; subsequently to the CJEU judgment, Romanian ordinary court nuanced its position on the four European arrest warrants issued by German authorities, taking into consideration the infringement of the human rights in the procedure of execution of the warrant and procedural alternatives which had been useful for German authorities.

The Court of Appeal Constanța, in June 2009, pointed out the necessity of respecting the principle of mutual trust when it ordered immediately the execution of three of the European arrest warrants issued by German authorities.

Following to the decision of the CJEU,the  Court of Appeal Constanța, understanding that the executing judicial authority of the European warrant directly interferes with the exercise of rights of fundamentals of the requested persons, analyzed the merits of the warrant. The court appreciated that surrender requests do not specifically justify whether the surrender of the requested person contributes to the completion of  evidence by the German criminal investigation body, and nor what is the reason why, on the one hand, they were formulated for a long period of time after committing the acts, as well as what is the reason why, specifically, on during the procedure carried out in Romania, for the execution of the European mandate of arrest, they did not administer the evidence that required the presence of the defendant, including through Rogatory Commissions and direct requests addressed to the Romanian judicial bodies.

The procedure regarding Mr. Ciprian Vasile Radu included procedure in front of two degrees of ordinary courts – the Court of Appeal Constanța, the High Court of Cassation and Justice -, a procedure before of the Romanian Constitutional Court and a procedure before CJEU. The approaches of these courts can be organized in three sections: firstly, the Constitutional Court (in 2010), and the Court of Appeal Constanța (in 2009), adopted the solution for fast and efficient cooperation, and implementation of a new instrument necessary to replace all previous legal instruments related to extradition. Secondly, the High Court of Cassation and Justice and the Court of Appeal Constanta (in 2013) analyzed the application of the Framework Decision on European arrest warrant emphasizing the necessity for the preservation of the fundamental rights and liberty during the procedure of execution of the arrest warrant detrimental to the principle of mutual trust. Thirdly, the Court of Justice of European Union, intending to cancel the consequences of the filling inconsistencies or legislative gaps that may give rise to non-uniform interpretations and applications at the level of the executing or issuing member states of the European arrent warrant, specify the condition to assure the protection of the fundamental rights and freedoms respecting fully the principle of mutual trust.

Whether the Court of Appeal Constanța ordered the execution of the three European arrest warrants, the High Court of Cassation and Justice overturned the decision and ordered the case to be sent back to the Court of Appeal, at the same time applying to Mr. Ciprian Vasile Radu a preventive measure limiting the right to free movement, namely the obligation not to leave the place of residence without the approval of the court.

The Romanian Constitutional Court, in its Decision no. 1,290 of October 14, 2010 regarding the exception of unconstitutionality of the provisions of Art. 77 para. (2) and art. 90 of Law no. 302/2004 regarding international judicial cooperation in criminal matters (published: the Official Gazette no. 749 of November 10, 2010) introduced by Ciprian Vasile Radu, emphasized the importance of respecting the principle of mutual trust, excluding the revision of the merits of the European arrest warrant issued by the German authorities.
Taking into account that "the Framework Decision cannot have the effect of changing the obligation to respect for fundamental rights and fundamental legal principles, such as they are consecrated by T.U.E.", contrary to the previous Romanian Constitutional Court Decision and the CJUE judgment Radu, the Court of Appeal Constanța established the next approached: firstly, regarding the refusal to surrender regarding the other three European mandates of arrest, the Court finds that, in the case, it cannot interfere with the right to individual freedom and regarding the right to family life of the requested person R.C.V., definitively convicted in Romania, since, in the case, there would be disproportionate interference to the goal pursued. Secondly, regarding the fourth European arrest warrant, considering the situation that, in the application of the principle of personality of the criminal law, the Romanian criminal judicial authorities carried out their own investigation and notified that a judgment was pronounced definitively in the meantime, imposing on the defendant the penalty of three years in prison, the "non bis in idem" principle is involved; consequently, it cannot be handed over the requested Romanian citizen for criminal prosecution in the requesting state with regarding the same deed that was the subject of the judgment in the Romanian state.

The scope of the preliminary ruling mechanism as a strategic litigation tool used by the referring court, proved both by precision, gradual detailing and complexity of the preliminary questions and by arguments invoked in its definitive decision, is defined by the attempt to obtain a higher level of protection of fundamental rights than that provided for in the Framework Decision 2002/584, especially in the sensitive and controversial context of the relation between the fundamental rights of the person and the procedure of the European arrest warrant and non-uniform interpretations and applications of the framework Decision 2002/584.

Law no. 300 of November 15, 2013, published in Official Gazette of Romania no. 772 of 11 December 2013 provides multiple changes of the European arrest warrant: issuing authority and procedure, transmission for execution and translation of the European arrest warrant; additional information and guarantees; temporary surrender or hearing of the requested person during the European Arrest Warrant surrender procedure; refusal of surrender; procedure on arrest of the requested person – hearing of the requested person; postponed surrender (https://legislatie.just.ro/Public/DetaliiDocument/153510).

The Court of Appeal of Constanta disregarded the guidance provided by the CJEU and by Decision no. 26/P/11.03.2013 of 11 March 2013 and refused execution of the four EAWs and the surrender of Mr Radu, acknowledging that framework decision 2002/584 on the European arrest warrant is only an instrument that provides a general framework for the orientation of surrender actions between member states and the fulfillment of related objectives and is supplemented both by the legislation of the member states and by the interpretations given by the national judicial authorities and by the Court of Justice of the European Union.
Nevertheless, the outcome achieved by the referring court is consistent with the CJEU doctrine on the obligation of respect for fundamental rights and fundamental legal principles, such as they are consecrated by the TEU. 

The national referring court did not quote other judgements of the CJEU/ECtHR.

The national referring court quote the opinion submitted by European Commission in the case.

The national case law on fundamental rights was not considered an important element in this case.

The State prosecutor appealed the decision of the Court of Appeal in front of the High Court. The High Court annulled the Court of Appeal’s decision by Judgment no. 2372 of 17 July 2013, giving priority to the principle of mutual recognition. The High Court found that the decision of the Court of Appeal was unlawful as it did not implement correctly the guidance provided by the CJEU. Further on, the High Court decided that the limitations to the fundamental rights were necessary and proportionate, given the gravity of the offences. Based on the above findings, the High Court ordered the execution of three EAWs and the surrender of Mr Radu to the German authorities. One EAW execution was rejected, according to ne bis in idem principle. The surrender was authorized under the condition that, if found guilty, the requested person would be transferred to Romania for serving the sentence.

There was no consensus between national courts on how to implement the CJEU preliminary ruling in Radu case. Unlike, the Court of Appeal of Constanta which disregarded the guidance provided by the CJEU and, by Decision no. 26/P/11.03.2013 of 11 March 2013 and refused execution of the four EAWs and the surrender of Mr Radu, the High Court annulled the Court of Appeal’s decision by Judgment no. 2372 of 17 July 2013, giving priority to the principle of mutual recognition and deciding that the limitations to the fundamental rights were necessary and proportionate, given the gravity of the offences. There are not divergences between the judiciary and other state powers regarding the implementation of the preliminary ruling in Radu case. Thus, there are no consequences for judges following the CJEU preliminary ruling in Radu case. Between 2017 and 2024, 14 ordinary courts, but especially the Court of Appeal of Timisoara, made references to Case C-396/11, following the directions of interpretation done by the European judges and the High Court judges.

Decision of the High Court of Cassation and Justice – Criminal Law Section ÎCCJ no. 1043/2017
Decision of 06 June 2023, Timișoara Court of Appeal, File no ###/59/2023, ECLI:RO:CATIM:2023:010.######
Decision of 22 February 2022, Timișoara Court of Appeal, File no #####/325/2018, ECLI:RO:CATIM:2019:040.######
Decision of 17 December 2015 of High Court of Justice, Queen Bench Division, Administrative Court, Lagocki & Anor v Regional Court In Szczecin, Poland Prosecutor General's Office, Republic of Lithuania, paragraph 31, [2015] EWHC 3641 (Admin)
Decision of 20 February 2015 of High Court of Ireland, Minister for Justice and Equality -v- OC [2015] IEHC 161
Decision of 19 June 2014 of High Court of Ireland, The Minister for Justice and Equality -v- ES [2014] IEHC 376
Decision of 20 March 2013 of High Court of Justice, Queen Bench Division, Administrative Court, Case No: CO/1311/2013, Antonio Troitino Arranz v. Spanish Judicial Authority, paragraph. 39, [2013] EWHC 1662 (Admin)
Judgment of 6 July 2015 in Case C‑237/15 PPU, Minister for Justice and Equality v.Francis Lanigan, Views of General Advocate Pedro Cruz Villalón, paragraph 101, ECLI:EU:C:2015:509
Judgment of 9 February 2017 in Case C-283/15, X v. Staatssecretaris van Financiën, paragraph 55, ECLI:EU:C:2017:102; Opinion Of Advocate General Wathelet delivered on 7 September 2016, paragraph 73, ECLI:EU:C:2016:140
Opinion of Advocate General Bot delivered on 3 March 2016 (1) Cases C‑404/15 and C‑659/15 PPU Pál Aranyosi (C‑404/15) and
Robert Căldăraru (C‑659/15 PPU), paragraph 16, ECLI:EU:C:2016:140
Opinion of Advocate General Bobek delivered on 11 May 2016, Case C‑108/16 PPU, Openbaar Ministerie v Paweł Dworzecki, paragraph 40, ECLI:EU:C:2016:333
JUDGMENT OF 20 December 2017, Case C‑516/16, Erzeugerorganisation Tiefkühlgemüse eGen v Agrarmarkt Austria, paragraph 80, ECLI:EU:C:2017:1011
Opinion of Advocate General Campos Sánchez-Bordona delivered on 30 April 2019, Case C‑128/18, Dumitru-Tudor Dorobantu, paragraph 7, ECLI:EU:C:2019:334

Judgment of 6 November 2012 in Case C-199/11 Otis and Others, paragraphs 46 and 47; judgment of 5 September 2012 in Case C-42/11 Lopes Da Silva Jorge, paragraph 28; judgment of 28 June 2012 in Case C-192/12 PPU West, paragraph 53; Case C-388/08 PPU Leymann and Pustovarov [2008] ECR I-8993, paragraph 51, and Case C-261/09 Mantello [2010] ECR I-11477, paragraph 37.

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https://curia.europa.eu/juris/document/document.jsf?text=mandat%2Beuropean%2Bde%2Barestare&docid=132981&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=2119688#ctx1

Alina Gentimir, “Alexandru Ioan Cuza” University of Iasi

CJUE, Case C-396/11 Ciprian Vasile Radu, judgment of 29 January 2013
Court of Appeal Constanta, File no. 1230/36/2009, Criminal Decision no. 26/P/11.03.2013