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Romania is one of the many countries that utilizes a decentralized approach to the implementation of the EAW system. The criminal justice branch of the Romanian judiciary is divided along 188 first instance courts, 42 tribunals, 15 courts of appeal and the High Court of Cassation and Justice. Each of these courts has a prosecution office attached. A centralizing element in the Romanian system comes in the form of the coordinating Ministry of Justice, which has been designated as the central authority for Romania (European Council, 2009d, p.4). One function the Ministry can fulfill for the various issuing courts is that of a translator of EAW’s, although courts may also utilize other licensed translators (European Council, 2009d, p.9). The Ministry is furthermore capable of transmitting EAW’s to the competent authorities of other Member States, which is common practice according to the Council evaluative report of 2009 (European Council, 2009d, p.10). Finally, the Ministry of Justice may receive and forward EAW’s to prosecutors’ offices (European Council, 2009d, p.14).

In line with its decentralized system, the issuing of warrants for the purposes of prosecution is a duty of the judge who would be competent to try the case in first instance. If the case is still at the pre-trial stage, a prosecutor will file a request for the issuing of a warrant to that judge. If the trial stage has already begun, the court will file a request to this judge. Furthermore, the courts of first instance are charged with the enforcement of sentences in Romania, meaning that a warrant for the execution of a sentence will always be issued by one of these courts. An interesting feature of the Romanian system is that EAW’s first require an internal warrant, which has significantly higher detention thresholds than those of the EAW

63 Framework Decision. Where the EAW requires a minimum of 2 years detention for the maximum imposable penalty, the Romanian internal system requires that the crime is punishable with a sentence of at least 4 years of detention. This means that EAW’s for trivial offences should not be expected from Romanian authorities (European Council, 2009d, p.6-8).

One problem already encountered by the Council evaluation team in 2009 was the trial in absentia

guarantees provided by Romanian courts. Romanian courts would refer to article 522 of the Criminal Procedure Code, which is a practice not always accepted by foreign courts (European Council, 2009d, p.11). The Netherlands is one of the Member States which requires a high degree of specificity for its return guarantees. It not only requires a degree by the relevant authority for the specific case at hand, but also refuses surrender if the translation of the guarantee and/or the provision is either severely faulty or leaves room for differing interpretations. It will therefore be interesting to see how these differing practices play out in the relationship between the Dutch and Romanian judiciaries.

The execution of foreign warrants is regulated one level higher than the issuing of warrants, with Romanian Courts of Appeal and their attached prosecutors’ offices being the designated authority to consider a request for a person from another Member State. Interesting in the Romanian system is that it does accept warrants in all languages, with the prosecutors checking whether the EAW needs to be translated into the officially accepted languages Romanian, English or French and if necessary authorizing a licensed translator to do so (European Council, 2009d, p.15). If a requested person consents to his/her surrender, a court will consider if any of the mandatory or optional refusal grounds apply to him within 10 days. If not, the surrender will be authorized (European Council, 2009d, p.21). Should consent be withheld, a more elaborate procedure applies. The person is heard, after which a court session at the Court of Appeal is held. Individuals can appeal to decisions of these courts at the High Court of Cassation and Justice (European Council, 2009d, p.21). Law 222/2008, implementing the EAW Framework Decision, has transposed all mandatory and optional refusal grounds of the Framework Decision very much in line with the EAW Framework Decision. As such, all grounds for refusal are in line with the Framework Decision, and no optional grounds of the Framework Decision have been transposed as mandatory in the Romanian system (European Council, 2009d, p.22). In the past, several EAW’s were refused due a breach of article 6 ECHR on the right to a fair trial, for a time generating a judiciary-based refusal ground. These alleged breaches amounted to undue provisional detention orders or the existence of the act. On appeal in 2008, the High Court of Cassation and Justice considered that refusals on such grounds were beyond the discretion of the Romanian courts, thus ending the practice (European Council, 2009d, p.23). Refusal of surrender on the basis of nationality is, as said, implemented as an optional refusal ground. Since the reforms of the implementing act in 2008, the refusal ground may only be applied in execution of sentence cases where the Romanian national refuses to serve the sentence in the requesting Member State. In prosecution cases it is mandatory for foreign authorities to provide a return guarantee for the requested person. As opposed to many Member States that also provide some form of protection for non- nationals with a long-term residence, the Romanian legislator has opted to transpose this refusal ground in such a manner that it only applies to Romanian nationals (European Council, 2009d, p.24). Ne bis in idem applies, as with many of the other Member States in this sample, in those cases that a person has been finally judged or acquitted of a crime (Tomescu, 2009). Double criminality is furthermore an optional refusal ground, with the court of appeal having discretion whether to apply the requirement in specific cases. Furthermore, if Romanian authorities have the intention of prosecuting a person for the acts that

64 a person is requested for by an EAW, the surrender may be refused by the Courts of Appeal (Popescu, n.a.).

5.12 The role of Eurojust and the European Judicial Network in fostering mutual