4. 1 European Arrest Warrant and double criminality. Cooperation models.
Models of international cooperation in criminal matters
material penal
4
A Geographical scope - International - Council of Europe
- Schengen Area - European Union
B Sources of Law - Bilateral Treaty -Multilateral Treaty
- European Union Instruments
C Cooperation models -Based on Mutual Assistance
-Based on Mutual Recognition
5. 2 European Arrest Warrant and double criminality. EAW features and problems.
European Arrest Warrant (EAW)
5
Features
a. Single form
b. Direct contact between
judicial Authorities
c. Short time limits
d. Surrender of nationals
e. Double criminality
f. Limited grounds for refusal
g. Mutual recognition/trust
based scheme
Common problems
a. Differences between Criminal
Justice systems.
b. Language barriers.
c. Lack of cooperation training
d. Attitude towards ICTs
e. Need to build, preserve and
increase mutual trust
f. Fundamental Rights protection
g. The X factor
6. 3 European Arrest Warrant and double criminality. Grounds for refusal scheme.
EAW FD Grounds for refusal and guarantees
6
- Amnesty
- Ne Bis in Idem
( Member State)
- Age
MANDATORY
GROUNDS FOR
REFUSAL Article 3 - Double criminality
- Proceedings
(Executing Member
State)
- Not to prosecute
- Halt
- Statute barred
(Member State)
- Preventing further
proceedings
- Ne Bis in Idem (3rd State)
- Nationals
- Territoriality
OPTIONAL GROUNDS
FOR REFUSAL Article 4
-In absentia cases
-Return of nationals
-Life sentences
GUARANTEES TO
BE GIVEN Articles
4 bis and 5
7. 4 European Arrest Warrant and double criminality. Articles 2(4) and 4(1) EAW FD.
Double criminality
7
The top 32
Article 2(2) Without verification of the double criminality
Rest of the offences
Article 2(4) "... the surrender may be subject to the condition that the acts
for which the European arrest warrant has been issued constitute an offence under
the law of the executing Member State, whatever the constituent elements or
however it is described.“
Article 4(1) "... the act on which the European arrest warrant is based
does not constitute an offence under the law of the executing Member State...."
(Taxes exception)
The top 32
Article 2(2) Without verification of the double criminality
Rest of the offences
Article 2(4) "... the surrender may be subject to the condition that the acts
for which the European arrest warrant has been issued constitute an offence under
the law of the executing Member State, whatever the constituent elements or
however it is described.“
Article 4(1) "... the act on which the European arrest warrant is based does
not constitute an offence under the law of the executing Member State...." (Taxes
exception)
8. 5 European Arrest Warrant and double criminality. Transposition models.
Transposition models
8
LRM. Spanish Act on Mutual
Recognition of Judicial decisions
in criminal matters in the European
Union, Art. 20
"when the order or judicial
decision received is to punish an
act classified as an offence other
than those foreseen in this Article,
their recognition and enforcement
may be submmitted to fulfilment of
the double criminality. requisite..."
IRG. German Act on International
Cooperation in Criminal Matters,
Art. 3(1), requires for extradition
that an offence is also an act
contrary to the German Law or,
mutatis mutandis, the offence
could also constitute a crime in
Germany.
9. 6 European Arrest Warrant and double criminality. Comparing offences.
Comparing offences
9
Comparison
In concreto
In abstracto
Aspects
Substantive (lex loci)
Procedural (lex fori)
Legal National provisions
CJEU case-law
Double criminality.
Correlation that exists in the
way criminal law has
categorised a form of behaviour
in two States which are
involved in an extradition
process.
10. 10
Conforming Interpretation
Pupino, 2005, Ognanyov, 2016
Uniform and autonomous
interpretation
Kozlowski, 2008
Wolzenburg, 2009
Spasic, 2014
Mutual recognition, limited
grounds for refusal, even
optional grounds might be
reduced, serving better
mutual recognition.
Wolzenburg, 2009
Restrictive interpretation of
exceptions to enforcement.
Double criminality
Grundza, 2017
EAW FD and Fundamental
Rights.Double criminality
Advocaten voor de Wereld,
2007Openbaar Ministerie v A, 2015
Human Rights standards of protection.
National and EU levels.
Melloni, 2011
Non discrimination
Lopes da Silva, 2012
Articles 47 and 48 CFREU
Radu, 2013
Respecting fundamental rights
Aranyosi-Caldararu, 2016
Preservation of fundamental rights
ML and LM 2018
Ne bis in idem
AY, 2018
CJEU
case law
Article 3(3) EAW FD
Minors
Piotrowski, 2018
7 European Arrest Warrant and double criminality. CJEU case-law.
11. 8 European Arrest Warrant and double criminality. Grundza judgment (I)
11
Arts. 7(3) and 9(1) d) FD 2008/909/JHA
§ 28 …”provision allows the executing State to make recognition of the
judgment and enforcement of the sentence subject to the requirement that the
condition of double criminality is met."
§ 33-36 Scheme
Checking the facts constitute an offence according to Executing MS Law
Exact match between constituent elements or name is not required
FD Wording context and objetive to be taken into account. Flexible approach
Relevant factors are those related to the congruence of the factual elements
underlying the crime, as reflected in the ruling passed in the issuing State and
the definition of a violation in the legislation of the executing State.
12. 9 European Arrest Warrant and double criminality. Grundza judgment (II). A judgment.
12
§ 46-49 Essential points to be verified. The legal classification echo.
"...whether the factual elements underlying the offence, as reflected in the
judgment handed down by the competent authority of the issuing State, would
also, per se, be subject to a criminal penalty in the territory of the executing State
if they were present there.”
" ... not whether an interest protected by the issuing State has been infringed, but
whether, in the event that the offence at issue were committed in the territory of
the executing State, it would be found that a similar interest, protected under the
national law of that State, had been infringed."
.The Openbaar Ministerie v A order.
The Issuing MS Law is the relevant in terms of penalty imposed.
Rejecting extradition via Art. 4(1) of the EAW FD requires that the facts for
which the person is requested are not in any way constituting an offence in the
executing MS. Neither the Art. 2(4), nor 4(1) or any other passage allow
establishing the condition of minimum punishable threshold, being the only frame
of reference in this regard that found in the legislation of the issuing State
13. 10 European Arrest Warrant and double criminality. The Piotrowski judgment.
13
Art. 3(3) EAW FD
EAW shall be refused if the requested person
"…may not, owing to his age, be held criminally responsible for the acts on
which the arrest warrant is based under the law of the executing State.”
The facts. PL requested the
surrender of a 17 citizen to be
tried as an adult.
Existing special regime in BE for
16-18, depending on detailed
circumstances to be assessed they
are tried as juvenile or as adults
The question.
How, in abstract or concretely, the
minor responsibility has to be
understood
In abstracto, he could be considered
criminally responsible.
In concreto a series of complicated
concurrent factors should be taken
into account to grant the surrender.
The decisión
THE CJEU rejected a detailed assessment, stating that the conduct of an
evaluation before a surrender was contrary to the purpose of a system of
cooperation based on mutual recognition. In line with AG opinion Advocate who
noting that this type of operation of specific determination of responsibility would
deprive mutual recognition of any useful effect.
14. 11 European Arrest Warrant and double criminality. The Grundza-Piotrowski paradox.
14
Grundza
FD 2008/909/JHA
Arts. 2(4) and 4(2) EAW FD
Acussation or conviction cases.
Grounds for refusal restrictive
interpretation.
Considerable degree of ad hoc
appreciation beyond a general and
abstract examination.
Piotrowski
Art. 3(3) EAW FD
Grounds for refusal restrictive
interpretation
Particular comparison cannot go so
far as to put the executing judicial
authority in the position of reviewing
the whole case again as this is
incompatible with the principle of
mutual recognition.
-Impact of A case, the importance of penalty to assess offences homology.
-Diagonal interpretation (§ 56 AG opinion in Grundza)
-Essential elements to be weighed to check correspondence beyond criminal
taxonomy to conclude a similar interest is protected in both MS.
-Obligation of the executing MS to determine correspondence? Different
interpretation in a homogenous crime that is under the same or similar
denomination in both States or additional sweep to detect any other possible
coincidence of protected interests.
15. 12 European Arrest Warrant and double criminality. The Puigdemont case.
The situation
15
16. 13 European Arrest Warrant and double criminality. The Puigdemont case. Facts.
16
A Causa Especial núm. 3/20907/2017. Supreme Court EAW to Germany
requesting Mr Puigdemont extradition to Spain to be tried for the crimes of rebellion
(Art. 472 and related articles of the Criminal Code) and embezzlement of public
funds (Art. 432 in relation to Art. 252 of the same Act). The German Prosecutor
informed in favour of the extradition.
B The Higher Regional Court of Schleswig-Holstein, on the 05-04.18 ruled out
rebellion ab initio, released Mr Puigdemont and regarding the embezzlement
opened the possibility of surrender and for the Prosecutor to ask Spain for
supplementary information according to IRG, Arts. 12, 15 and 30.
C -Coordination meeting at Eurojust HQ, 12.04.18
-Addtional information and documents to German Court, 26.04.18 while
suggesting the consideration of treason instead of rebellion
-German Prosecutor reiterated the request for all charges, 01.06,18.
Correspondece between embezzlement and corruption (Art. 2(2) EAW FD) and
between rebellion and high treason (Art. 81 StGB). The Court had exceeded its
authority by entering into the merits of the case.
-The Court ratifies its first decisión, 12.07.18
17. 14 European Arrest Warrant and double criminality. The Puigdemont case. Reasoning.
17
1. Rebellion is not in Art. 2(2) of the EAW FD (Art. 81 IRG).
2. IRG (Arts. 3(1) and 81(4) verification that the facts would be a crime in Germany,
analogous conversion guideline.
3. Arts. 81 and 82 of the German Criminal Code (StGB), high treason against the
Federation or against a State of the same, would not be applicable. Locative
exegesis [or exegeis ratione loci in latin], imagining the events as occurring in
Germany. German case-law Frankfurt airport in 1983.
4. Art. 81(1) StGB comparable with rebellion in Spain.Riots in Catalonia does not
amount to be categorised as a crime since it was not from an entity such as to
pose a real threat to bend the will of the government.
5. Embezzlement (corruption), an information deficit, Art. 83a(1)5 IRG allowing the
crime to be attributed to the behaviour of the defendant.
18. 15 European Arrest Warrant and double criminality. The Puigdemont case. Commentary.
18
German transposition model influence.
Reinforced double criminality and Grundza doctrine.
Equalising of an EAW request to an extradition request made by a third State.
Assessment of he violence, according to German Law, strongly criticised in Spain.
StGB Arts. 83, 89a, 90a , 111, 113, 125.preparation of an enterprise aimed at high
treason, disobedience, resistance, rioting and others, similarities with rebellion in
Spain, might have been used.
Appropriateness of refusal ad limine of EAW. (Two-tier Aranyosi-Caldararu
verification)
Possibility of broaden the level of analysis (following Grundza § 47 and 49)
Case Importance (Rule of Law, Arts. 1bis and 3 bis TEU) Exhausting construction
possibilities but not ad hominem interpretation.
Procedural options for the Spanish Court
Preliminary ruling (Art. 267 TFEU) and AY doctrine
Accepting the surrender just for the embezzlement offence
Others
19. 16 European Arrest Warrant and double criminality.
19
"...is first and foremost, for the executing Member State to trust the
actions of the issuing Member State. However, the issuing Member State
must also trust the actions of the executing Member State when the latter
relies on grounds of refusal of execution of an EAW. Once the issuing
Member State begins to apply and interpret the law of the executing
Member State and attempts to ascertain whether the latter has correctly
applied the law, it moves dangerously close to a breach of that mutual
trust."
Advocate General Szpunar, opinion in the AY case, paragraph 32
20. 17 European Arrest Warrant and double criminality. The Puigdemont case. References.
20
Causa Especial núm. 3/20907/2017. Slide 13.
http://www.poderjudicial.es/cgpj/es/Poder-Judicial/Noticias-Judiciales/El-Tribunal-
Supremo-condena-a-nueve-de-los-procesados-en-la-causa-especial-20907-2017-
por-delito-de-sedicion
Eurojust Case Law by the Court of Justice of the European Union on the
European Arrest Warrant. Slide 7.
http://www.eurojust.europa.eu/doclibrary/Eurojust-
framework/caselawanalysis/Case%20Law%20by%20the%20Court%20of%20Justic
e%20of%20the%20European%20Union%20on%20the%20European%20Arrest%2
0Warrant%20(October%202018)/2018-10_EAW-case-law_EN.pdf
IRG. Slide 13. http://www.gesetze-im-internet.de/englisch_irg/
Spanish Criminal Code. Slide 13.
https://www.legislationline.org/download/id/6443/file/Spain_CC_am2013_en.pdf
StGB. Slide 14. http://www.gesetze-im-internet.de/englisch_stgb/index.html
21. 17 European Arrest Warrant and double criminality. The Puigdemont case. Judgments
21
CJEU case-law
Case C-289/15, Grundza, EU:C:2017:4
Joined cases C-404/15 and 659/15, Aranyosi-Caldararu, EU:C:2016:198
Order C-463/15PPU, Openbaar Ministerie v A., EU:C:2015:634
Case C 268/17,AY. AG Opinion EU:C:2018:317
Judgment EU:C:2018:602
Case C-367/16, Piotrowski, EU:C:2018:27
