Europos arešto orderio proporcingumo testas baudžiamajame procese
Proportionality Test of the European Arrest Warrant in a Criminal Procedure

Summary/Abstract: Straipsnyje analizuojama proporcingumo testo Europos arešto orderio atveju specifika ir praktinės problemos Europos Sąjungos teisėje bei Lietuvos baudžiamajame procese, taip pat proporcingumo testo schema ir vertinimo kriterijai. European arrest warrant is the first and the most frequently used legal instrument in the European Union based on the mutual recognition principle. Framework decision2002/584/JHA marks the starting point in the development of a simplified EU wide system of cooperation in criminal matters. Successful functioning of EAW system (as well as the whole mutual recognition based system) is dependent on the level of mutual trust between the issuing and the executing member state. More than 10 years of EAW application in practice has shown that in a standard situation priority is more likely to be given to the mutual trust rather than to a proper safeguarding of human rights. This has led to numerous situations in various member states in which EAWs have been issued when it was clearly unnecessary and disproportionate. The recent developments of the EU criminal and criminal procedure law have clearly shown that an increased amount of attention is being paid to proper safeguarding of essential rights of a person who is being faced with criminal justice system. Since there are no unified standards to be equally applied throughout the EU there is a need for individual assessment of each situation in order to stay in compliance with basic human rights. Such an evaluation is exclusively important during the application of EAW since a person experiences the most restrictive coercive measures – usually, a detention. Proportionality test in the EAW procedure is the key which guarantees that the instrument will be applied in compliance with the essential human rights. However, the prevailing approach to this question is that the proportionality check can and must be done only during the issuing of EAW. The executing state is excluded from the evaluation of the proportionality.This article analyse the nature and specifics of the proportionality test identifies the stages of its application and suggests the criteria to be evaluated during the test. Authors support the idea that the proportionality check must be carried out not only during the issuing stage, but also during the execution of EAW. Such a perspective is based on the direction which is apparent in the recent EU legislation based on mutual recognition principle (mostly – Directive on the European Investigation Order), practical experience of several member states and developments of the jurisprudence of the European Court of Justice. The proportionality test, suggested by authors, includes a wide range of material and procedural criteria. The set of criteria to be evaluated differs depending on an individual case and its specific circumstances. Thorough proportionality check during the whole process of EAW application is an option which can increase the level of procedural safeguards of an individual until criminal procedure rules are unified in the EU.

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