Extension of the surrender term and the measure of preventive arrest of the requested person for surrender to the competent judicial authorities, based on the European arrest warrant, due to the impossibility of organizing the surrender/takeover mission i

DREPT PENAL ŞI DREPT PROCESUAL PENAL

Abstract

In interpreting the provisions of Article 23 of the Framework Decision no. 2002/584/JAI, the CJEU ruled in case C-640/15 in the sense of agreeing on a new date of surrender and maintaining the obligation to continue the procedure for the execution of the European arrest warrant also after the expiry of the time limits provided by this article in case their non-compliance was due to a force majeure event.

The requested person was not taken over by the Italian judicial authorities within 10 days of the date on which the surrender decision became final and no definite date has been indicated for its subsequent takeover, as there is no evidence that the Italian and the Romanian judicial authorities established a new deadline for surrender, for the 10 days to run, according to the provisions of Article 113 paragraph (2) of Law no. 302/2004.

It is true that there is a worldwide exceptional state as a result of the declaration of the coronavirus pandemic and that the freedom of movement of persons is restricted, but this does not allow a person to be deprived of liberty for an uncertain period, i.e. until things return to normal. The imprisonment of a person cannot be extended on account that said person, at a certain moment, must be handed over to the requesting authority, regardless of whether it falls within the 180-day term provided by Article 104 paragraph (10) of Law no. 302/2004, because its duration was uncertain, and depended on unpredictable factors that contradict the provisions of Article 5 of the ECHR.

With the exhaustion of the detention measure, the term within which all necessary measures must be taken in order to hand over the requested person, the maximum surrender term will also expire therefore the only option will be that the person requested be set free from the preventive arrest, if such person is not taken over, and the requesting judicial authorities may file, in the future, a new request for surrender based on another European arrest warrant for the same actions according to the provisions of Article 113 paragraph (3) of Law no. 302/2004.