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In the first and, perhaps, only UK extradition case to be considered by the Court of Justice of the European Union (“CJEU”) the Divisional Court (Simon LJ and William Davis J) has referred the following questions;
“Where surrender is sought in order to prosecute a requested person, and where the decision to issue an underlying national arrest warrant (“NAW”) and the decision to issue a European arrest warrant (“EAW”) are both taken by a public prosecutor, without any involvement of a Court prior to surrender, does a requested person receive the dual level of protection envisaged by the Court in Bob-Dogi C-241/15 if:
(a) The effect of the NAW is limited to detaining the individual for a maximum of 72 hours for the purpose of bringing him before a Court; and
(b) On surrender, it is solely a matter for the Court whether to order release, or to continue detention, in light of all the circumstances of the case?”
The question of what is a judicial authority, pursuant to Article 6(1) of Council Framework Decision 2002/584/JHA, which brought about the EAW system, has already been considered by the CJEU in relation to Germany, Lithuania, France and Belgium. However until now the Court has never before considered an EAW from Bulgaria.
An “issuing judicial authority” is a concept which is defined by European Union law. It cannot be determined by individual member states.
In Bulgaria neither the national detention warrant nor the EAW itself are founded on a decision of a court. Neither of these decisions can be subject to judicial oversight before the individual is extradited. The prosecutor has the power to detain the person for 72 hours and then can issue an EAW.
For this reason, given the lack of judicial oversight, the Divisional Court has referred the above questions to the Court of Justice which has never before considered such a case in relation to the Bulgarian prosecutor.
VA is a Bulgarian national, living in London, who is accused of a burglary which is said to have taken place in 2011. His extradition is sought by the Bulgarian prosecutor.
Benjamin is led by Helen Malcolm QC of 3 Raymond Buildings.