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Abstract

The case concerns a European arrest warrant examined in Romania by the Bucharest Court of Appeal, as the first-instance and subsequently by the High Court of Cassation and Justice on the Prosecutor’s challenge. The warrant had been issued by the Spanish authorities for the execution of a final criminal judgment concerning international child abduction. The requested person, a Romanian citizen and the child’s mother, had been convicted in Spain after leaving the country with the child, settling in Romania, and refusing to return the child despite Spanish and Romanian civil proceedings concerning custody and return. The Spanish judgment imposed four years’ imprisonment and a five-year disqualification from exercising parental rights.

The child’s father brought return proceedings in Romania under the 1980 Hague Convention. By civil decision no. 1314 of 14 October 2009, the Bucharest Court of Appeal granted the requested person a two-month period to return the child to Spain. The return did not take place. The judgment records that the Romanian Central Authority later set dates in February 2011 for the child’s handover to the father, but the handover was not carried out because of the requested person’s refusal.

The Bucharest Court of Appeal, acting as the first-instance executing court, refused execution of the European arrest warrant and declined incidental recognition of the Spanish judgment. It relied mainly on two grounds: (1) the requested person had allegedly been tried in absentia without an effective defence; (ii) a previous Romanian prosecutorial decision concerning Article 379 of the Romanian Criminal Code precluded the Romanian authorities from subsequently relying on the Spanish conviction.

On the Prosecutor’s challenge, the High Court rejected both grounds. As to the first, it held that the requested person had been aware of the Spanish proceedings, had been represented by counsel, and had benefited from an effective defence. The ground relating to trial in absentia was therefore not applicable. As to ne bis in idem, the High Court held that the Spanish proceedings concerned conduct beginning in Spain before the date on which the Romanian offence was considered to have been committed, while the Romanian prosecutorial solution had rested on the late filing of the prior complaint, a procedural condition specific to Romanian law. That prior Romanian solution therefore did not prevent the Spanish conviction from being recognised in the Romanian proceedings.

The High Court further held that the Spanish offence did not fall within the list of European arrest warrant offences exempt from verification of double criminality. It therefore examined the Romanian equivalent of the conduct and found it in Article 379(1) of the Romanian Criminal Code. The foreign offence of international child abduction was thus translated, for Romanian criminal-law purposes, into parental retention of a minor without the consent of the other parent.

Even so, the High Court did not order the requested person’s delivery to the Spanish authorities. Since she was a Romanian citizen and did not agree to serve the sentence in Spain, the Court applied the Romanian rules allowing refusal of execution of the warrant on that basis. It then recognised the Spanish judgment incidentally and adapted the four-year custodial sentence to the Romanian statutory maximum for Article 379(1) of the Romanian Criminal Code, namely three months’ imprisonment, ordering the issuance of a Romanian warrant for the enforcement of the adapted sentence.