Arestarea provizorie în vederea extrădării din perspectiva cauzei C.E.D.O. Matthews și Johnson împotriva României
Provisional arrest for extradition in the context of the case of E.C.H.R. Matthews and Johnson v. Romania

Summary/Abstract: The paper addresses some shortcomings caused by the imprecise and insufficient legislation of the arrest measure in the field of passive extradition, as the latter is regulated by Law no. 302/2004, which has led to problems in the interpretation of the relevant texts. These problems have led to legislative changes which, however, are quite summary and which do not satisfy, in our opinion, the desire imposed by the Constitutional Court of Romania through Decision no. 359 of May 26, 2022. We consider that the method of regulating the provisions of art. 57 para. 5 and 6 of Law no. 302/2004 still do not represent a sufficiently clear and predictable procedure meant to ensure compliance with the constitutional and conventional requirements regarding the possibility of the authorities to maintain an extradited person in a state of deprivation of liberty.In this regard, we consider that the legislator has not fully fulfilled its obligation to identify the situations that determine the maintenance of the measure of deprivation of liberty of the extradited person after the deadlines provided by art. 43 para. 7 in conjunction with art. 57 para. 5 of Law no. 302/2004 and the regulation of a coherent framework that provides for the definition of the measure, the conditions underlying the order/extension of the measure, the maximum duration of each order/extension, its content, the remedy, etc.In the same vein, if the expulsion or extradition procedure is provisionally suspended, following a request for provisional measures (e.g. temporary blocking of extradition), this in itself does not render the detention of the person concerned unlawful, provided that the authorities continue to consider expulsion, at a later stage, and that that detention is not unreasonably prolonged. This aspect, although it was intended to be regulated by Law no. 306/2022, clarifying that the maximum total period for which arrest can be ordered, of 180 days, is calculated until the actual surrender of the requested person., created, at least apparently, another problem given that the provisional measures adopted in the procedure before the European Court of Human Rights are binding on the state concerned, and their duration may theoretically exceed the maximum term established by national law.These findings, among others, were based on the analysis of a very recent case before the ECHR, Matthews and Johnson v. Romania, which called into question some of the questionable issues belonging to the field of passive extradition, even if in the end the applicants' complaints were rejected.

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