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2008 CDP 1 (2008)

handle is hein.journals/crimlwr2008 and id is 1 raw text is: DOCTRINA
Cfteva consideratii privind mandatul european de arestare
Florin STRETEANU
ABSTRACT. A Few Considerations On The European Arrest Warrant. The
present study carries out an analysis of the fundamental document on EU criminal
judicial cooperation, i.e. the European arrest warrant, brought forward by Framework
Decision no. 2002/584/JAI of June 13 2002 of the Council of the European Union. In
what regards national law, the study refers to Law no. 302/2004, amended by Law no.
224/2006, which introduces the provisions of the given framework decision.
After a succinct outline of the advantages of this new judicial instrument, as
compared to extradition, the author investigates some problems concerning the
application in time of the provisions regarding the European arrest warrant. Thus, in
consensus with the jurisprudence of the Romanian Constitutional Court, the Romanian
legislator has upheld the principle of the immediate application of these provisions, even
in what concerns acts perpetrated before January P' 2007.
In what follows, the analysis focuses on the issuance of such a warrant, investigating
both the competence to issue it, and the conditions in which it can operate. The author
unveils some inconsistencies of the Romanian law-maker, who, in implementing the
arrest warrant, has stipulated the requirement that the punishment be higher than 4
months, whereas the text of the framework decision refers to at least 4 months.
Subsequently, from the standpoint of the warrant's execution, the paper verifies both
competence, and the offences that can constitute the object of the warrant. In this context,
the author emphasizes some elements of novelty brought by this institution, as well as
their practical consequences- the abandonment of the double incrimination requirement
in the case of some categories of crimes, the Court of Justice's decision that stated the
European arrest warrant does not infringe upon the principles of legality of incrimination,
equality and non-discrimination.
Next, the paper deals with the mandatory and optional grounds of refusing to execute
a European arrest warrant. In relation with the possibility of a judge to refuse the
execution of a warrant if it refers to offences that, according to Romanian law, are
committed on Romanian territory, the study maintains that this includes offences partly
committed on Romanian territory, since the principle of ubiquity regards them as entirely
committed on Romanian soil. The author regrets that the law does not demand that, in
case of such a refusal to execute the warrant, the Romanian authorities be obliged to
prosecute the respective offence, especially in the case in which it was partly committed
on the soil of the issuing Member State. Furthermore, the author argues that the
Romanian courts should systematically resort to this reason of refusal in the cases in
which the crime perpetrated on Romanian territory is not incriminated by the Romanian

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