Ivo Hinov and Elena Popova[1]


In its recent preliminary rulings in the cases Kovalkovas, C-477/16 PPU, Poltorak, C-452/16 and Ozcelik, C-453/16 PPU, concerning the European Arrest Warrant, the Court of Justice of the European Union had the occasion to interpret the terms “judicial decision” and “judicial authority” which appears to be of utmost importance for the correct application in Bulgaria of the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (2002/584/JHA). The CJEU ruled that the framework decision requires an autonomous and uniform interpretation of those terms. It establishes that ‘judicial authority’ is not limited to designating only the judges or courts of a Member State, but may extend, more broadly, to the authorities required to participate in administering justice in the legal system concerned, which may include the public prosecutor’s office, but not organs forming part of the executive power.

The interpretation given by the Court is relevant to the Bulgarian practice of issuing EAW in a pretrial period given that the legal ground for issuing such a warrant is art. 64, parra. 2 of the Bulgarian Criminal Procedures Code according to which the prosecutor shall immediately ensure for the accused party to appear before court and, if needed, he/she may rule the detention of the accused party for up to 72 hours until the latter is brought before court. The ordinance of the prosecutor ordering such a detention is a non-challengeable act (neither upon request of a party nor ex officio). The questions that arise as a result of that practice are whether in cases of detention by means of EAW (1) the rights of the concerned persons are effectively guaranteed in conformity with EU law and (2) the legal standing of the concerned person is substantially more disadvantageous comparing to a pure national situation since, on the one hand, the detention under art. 64, parra 2 is permitted for a maximum period of 72 hours and, on the other, when issuing EAW the detention may continue to up to 90 days.

The authors suggest as a possible solution a legislative changes permitting judicial control over the ordinance under art. 64, parra 2 of the Bulgarian Criminal Procedures Code. They consider, furthermore, that in the absence of a specific legal framework, articles 64 and 65 of CPC may be applied in order to admit an appeal directed against the material grounds for issuing the EAW (i.e. the national act for detention). The authors consider that article 10, paragraphs 4 and 5 of Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2013 on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty make possible such a solution.



Link to the article in Bulgarian language: Издаването на ЕЗА в светлината на най-новата практика на Съда на ЕС и българския закон


[1] Judges at the Bulgarian Specialized Criminal Court