The concept of the “national arrest warrant” and “judicial authority” for execution of the European arrest warrant

In the past years, the number of preliminary ruling references regarding EU’s criminal law measures significantly increased. It is not a surprise and it could be explained by the fact that the competences of the Court of Justice of the European Union (CJEU) since November 2014 to decide on preliminary ruling references on EU’s criminal law is no longer a subject of previous acceptance by member-states. In principle, all national courts are now free to refer to the CJEU and to receive a clarification of the meaning and validity of criminal law measures on EU level. Most of the references delivered to the CJEU by national courts refer to the Framework Decision on European Arrest Warrant (FDEAW), which replaced the classical extradition system with simplified procedure oriented towards acceleration of the surrender of the accused or convicted person from one to another member-state, according the mutual recognition principle. Since its adoption, the FDEAW is controversial, as the execution of EAW could be in conflict with the fundamental rights of the concerned person. It is assumed that the national authorities of other member-state comply with the right of fair trial and other fundamental rights. However, EU institutions were completely aware when the EAW system was created and ignored the issue of fundamental rights protection. The FDEAW contains provisions for protection of procedural rights and the right of fair trial, also stipulating that shall not have the effect of modifying the obligation to respect fundamental rights. However, EU institutions decided that not all violations on fundamental rights may justify the non-execution of EAW. Violation of general commitment to respect (other) fundamental rights was not acknowledged as a separate ground for non-execution. In a Union with its own Charter for fundamental rights (CFR) and expectations that its institutions and member-states shall respect the rights quoted in, this is not unproblematic. As the protection of fundamental rights is among key tasks, it should be expected that the CJEU shall carefully examine whether the FDEAW itself, as well as national decisions for issuing and execution of EAW, comply with fundamental rights. However, in the first years of the FDEAW, the CJEU showed no such will and was particularly careful not to undermine the effectiveness of the EAW system. The paper presents personal views regarding the EAW through several case studies that reveal an upward trend. The paper elaborates the EAW concept through National Arrest Warrant, as well as the need, and for the purposes of protection of fundamental rights, the issuing of the EAW by judicial authority. The paper explains how the CJEU constructed different FDEAW provisions and whether and to what extent national courts used the preliminary ruling procedure regarding criminal law measures vis-à-vis protection of fundamental rights. Keywords: European Arrest Warrant, preliminary ruling, Court of Justice, case studie