Within the European Union, citizens of one Member State are free to move, reside, and settle in the territory of another Member State. This circumstance not only contributes to providing more opportunities for personal and professional development, but also greatly facilitates criminal activity.
This fact requires effective measures to be taken to ensure the prosecution of these perpetrators and the surrender of convicted persons to serve their sentences. One such measure is the issuance of a European arrest warrant.
When is a European arrest warrant issued?
According to the Extradition and European Arrest Warrant Act, such a warrant is issued by a competent state authority of one Member State and addressed to a competent authority of another Member State with a request that a specific person be surrendered for the purpose of criminal prosecution or the execution of a sentence imposed for a criminal offense.
Several conditions must be met in order for a European arrest warrant to be executed.
Firstly, when a European arrest warrant is executed for the purpose of criminal prosecution, the offense for which the warrant was issued must be punishable by imprisonment of at least one year or by a more severe penalty.
[!] “Other more severe punishment” refers to life imprisonment or life imprisonment without parole.
When a European arrest warrant is executed for the purpose of surrendering a person to serve a sentence imposed in another Member State of the European Union, the sentence must be no less than four months’ imprisonment.
Secondly, surrender of a person on the basis of a European arrest warrant is only permitted if the act is also a criminal offense in the territory of the state whose citizen is sought. This is the so-called principle of double criminality.
However, the law exhaustively lists 32 types of crimes for which double criminality is not required in order for a person to be surrendered. This is permissible when the state issuing the order provides for imprisonment of not less than three years or another more severe punishment for these crimes.
The crimes for which an exception to the general rule of double criminality is allowed are: participation in an organized criminal group; terrorism; trafficking in human beings; sexual exploitation of children and child pornography, illicit trafficking in narcotic drugs and psychotropic substances; illicit trafficking in weapons, ammunition, and explosives; corruption; fraud, including that affecting the financial interests of the European Union; and laundering of proceeds from crime.
The exceptions include counterfeiting of money; murder and grievous bodily harm; aiding illegal entry and residence in the country; illegal trade in human organs and tissues; kidnapping, unlawful deprivation of liberty, and hostage-taking; racism and xenophobia; organized or armed robbery; trafficking in cultural property and antiques; fraud; extortion and racketeering; piracy; counterfeiting and trafficking in administrative documents; counterfeiting of payment instruments; illegal trafficking in hormonal preparations and growth stimulants; illegal trafficking in nuclear or radioactive materials; trade in stolen vehicles; rape; arson; crimes against peace and humanity; war crimes; hijacking of aircraft and ships; and sabotage.
IMPORTANT! The elimination of double criminality in these cases means that the execution of a European arrest warrant will be possible if the act committed is included in the list of these 32 types of crimes, regardless of whether it is declared a crime under Bulgarian law.
Can the execution of a European arrest warrant be refused?
The existence of formal requirements for issuing a European arrest warrant, as provided for by law, does not mean that the Bulgarian court will definitely execute it. This is because the Extradition Act and the European arrest warrant provide for a number of absolute and several relative grounds for refusing to execute a European arrest warrant.
There are three absolute grounds, namely:
1. the crime for which the order was issued falls under the criminal jurisdiction of the Republic of Bulgaria and has been amnestied by law.
[!] Crimes committed by Bulgarian citizens abroad fall under the criminal jurisdiction of the Republic of Bulgaria;
2. the court has been informed that:
a. with regard to the offense for which the order was issued, the requested person has already been convicted by a final judgment and is serving or has served the sentence, or
b. the sentence cannot be enforced under the law of the country in which the Bulgarian citizen has been convicted;
3. when the requested person is a minor under Bulgarian law.
There are six relative grounds on which a Bulgarian court may refuse to execute a European arrest warrant.
The first ground shall be present, if the requested person is prosecuted as a defendant or is on trial in the Republic of Bulgaria.
The second case, in which the Bulgarian court may refuse to comply with a European order a7> refuse the execution of a European arrest warrant for arrest is present then, when criminal proceedings for an offense for which it was issued is terminated in the Republic of Bulgaria.
Thirdly, if the crime is subject to Bulgarian jurisdiction and the statute of limitations for criminal prosecution or enforcement of the sentence has expired, then again there are grounds for refusing to execute the order.
The fourth ground applies when the Bulgarian court is informed that the requested person has served their sentence in a country that is not a member of the European Union. The same applies to cases where the Bulgarian citizen is currently serving the sentence for which the European arrest warrant has been issued or where it cannot be enforced under the law of the country in which the person was convicted.
The fifth case concerns situations in which the Bulgarian court decides, at the request of the convicted person, that he or she should serve the sentence in the Republic of Bulgaria.
Finally, the last ground on which the Bulgarian court may refuse to execute a European arrest warrant concerns cases where the offense was committed wholly or partly on the territory of the Republic of Bulgaria and Bulgarian law does not allow for criminal prosecution for it in another country.
It is important to note one basic rule laid down in national law.
Both the Constitution of the Republic of Bulgaria and the Penal Code prohibit the extradition of Bulgarian citizens to another country or to an international court for the purposes of criminal prosecution. An exception is made in cases where such surrender is provided for in an international treaty that has been ratified in accordance with the relevant procedure and has entered into force. In general, this concerns surrender to the International Criminal Court for crimes against peace and humanity and war crimes.
Precisely because of this prohibition, the state issuing a European arrest warrant is obliged to provide certain guarantees, without which the Bulgarian court will refuse to surrender the person.
The first category of guarantees concerns cases where the legislation of the issuing State provides for life imprisonment for the offense for which the European arrest warrant has been issued.
In such circumstances, the issuing State shall be required to provide evidence that its legislation provides for the possibility of:
1. review of the sentence imposed at the request of the person concerned;
2. review ex officio after a period of no more than 20 years;
3. a pardon.
The second category of guarantees is directly related to the prohibition on the surrender of Bulgarian citizens for trial in a foreign country. In this case, the requesting country must provide guarantees to the Bulgarian court that, after the Bulgarian citizen has been heard on its territory, he or she will be returned to the Republic of Bulgaria to serve the imposed prison sentence. If such guarantees are not provided, the Bulgarian court will refuse to execute the European arrest warrant.
IN CONCLUSION
As can be seen from the above, the issuance of a European arrest warrant does not always mean mandatory surrender to the requesting state. The legislation provides for strict formal conditions that must be met before such a warrant can be executed.
It is important to note that the participation of a defense lawyer in criminal proceedings for the execution of a European arrest warrant is mandatory. If the person against whom this warrant has been issued does not appoint a lawyer of their choice, a public defender will be appointed for them.
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You can find more interesting topics related to defense against criminal charges in the “Criminal Law” section.
Sole proprietorship law firm company “Silvia Petkova” provides legal assistance in the field of criminal law and international criminal law, including in proceedings for the execution of a European arrest warrant.
Contact:
Working hours: Monday to Friday from 10:00 AM to 6:00 PM
Address: Sofia, 2 Tri Ushi Str., 3rd floor
Tel. 0885 47 77 57
Email: office@petkovalegal.com
The provision of consultations on site at the office orby telephone is available only with a previously scheduled appointment.