Dr. Pavlina Panova[1]

The increasing demand of cooperation in the EU Criminal law field, in proportion to the emerging contemporary forms of criminality has been of major importance since the 1999 European Council in Tampere. The establishment of the need of a new way to achieve judicial cooperation in respect of the nowadays criminal reality, proclaimed by the Hague and Stockholm agendas of the Council of the European Union finds its importance in the general awareness and full implementation of the mutual recognition of all criminal proceeding stages principle /in both trial and pre-rial stages/.

In the field of criminal justice the mutual recognition principle is expressed in the binding rule according to which a National court of a member state is bound to execute a judicial act, issued in another member state as if it was originating from its own judicial system. Each EU member state should accept the foreign judicial acts as if they were their own, equivalent to judgements established on the application of its own national laws by its own national jurisdictions.

One can deduct that, at the base of the mutual recognition principle lies the respect of the individual legislation of each member state and foremost the faith in the construction, by each member state, of a minimum standard of protection of both human rights and the rule of law.

A certain divergence in the judicial systems of the member states cannot be neglected, specially in the criminal justice, taken in consideration its delicateness as a legal matter and the traditional principle that its rules are judged upon and enforced by the national sovereignty. One cannot deny this aforementioned difference, but on the contrary, member states should acknowledge it and accept it.

The entry to the EU of Bulgaria in 2007 has put forward a number of questions that the bulgarian criminal justice has to resolve. Bulgarian judges have to raise their awareness to the reality of contemporary judicial cooperation and its niceties in relation to the application other member states acts on national soil. This new form of cooperation has found its first application in the realization of an European Arrest Warrant adopted by a Framework Decision of the Council (#584) on the 13.06.2002, transposed in Bulgaria in 2005, thus almost two years prior to the official entry of Bulgaria to the EU.

Another judicial instrument established by the Council of the EU in the mutual recognition field is the 2003/557/JHA Framework Decision on the execution in the European Union of orders freezing property or evidence introduced by a national legislation in 2006.

The aftermath of a 5-year application of the European Arrest Warrant is considered as positive, taking in consideration in particular the lack of formalism in the communication between the two judicial parties, which narrows down to a minimum the unwanted delays on cases or eventual denials for the execution of an act.

The removal of the “dual criminality” background check on certain crimes, for which the EU legislation has provided special instruments such as : an arrest warrant, certificate of lien for the infliction of a financial sanction or for a confiscation, is considered to be a logical outcome of the mutual recognition principle.

A key innovation that the Framework De­cision on the European Arrest Warrant presents is the removal of the ban on handing over same-nationality individuals. This is one of the essential features of the EAW that distinguishes it from the principle of extradition.

The right of every bulgarian citizen to be protected by its state could be impaired in the case of a handing over to a state, based on the EAW principle but infringing his fundamental rights by being handed to a judicial system that doesn’t provide the sufficient of protection, namely a fair and equitable proceedings.

A recently emerging topic is the protection of the rights of citizens or individuals permanently residing on bulgarian soil, concerned by the EAW framework. The “Radu” case (C-396/11) presents a binding principle according to which the member state court should not respect objections on the unlawful sentencing of the individual in question in the issuing member state and thus the infrindgement of his procedural rights.

All in all, on cannot deny that the currently existing difficulties in the judicial cooperation field are based on the lack of trust and reliance between the competent judicial institutions. It is obvious that the trust has not reached a critical mass to appear natural and thus transcend into a implicit mutual recognition.

The application of the mutual recognition principle in the criminal justice field seems to be based on the gathering of knowledge that the member-states magistrates bring. An emerging source of cooperation and exchange in the field is the Eurojust network which helps judges from all across the EU to exchange experience, access training schemes and even participate in distance learning programs.

Bulgarian magistrates hold the opinion that the ECJ combined with the general cooperation framework provide a good solution for both proceedings parties in relation to the preparation and the overall conduct during an eventual trial. In Bulgaria, the question concerning the competence of the ECJ has arose in the post EU accession period followed by an intense transposition procedure especially in the field of criminal justice in both trial and pre-trial phases. The result at this stage doesn’t seem to be clear as a couple of consecutive governments has not succeeded in implementing the ECJ competence on questions concerning the criminal justice cooperation.

Nevertheless, the ECJ case law is well known and applied by bulgarian magistrates, taken in consideration that the issued rules are binding for each member-state, independently of the origin of the question referred. This way, not only the EU case law is being implemented in day-to-day criminal law proceedings, but one can observe an act of appurtenance and affection to the communal application and recognition of the rule of law, an act that rises the confidence of each individual judge, an act that acclaims him as a community judge.


[1]Vice-President of the Supreme Court of Cassation.