The Court of Justice has upheld the validity of the Council Framework Decision 2002/584/JHA on the European Arrest Warrant.
The idea behind the Framework Decision on the European Arrest Warrant is to simplify the system for the surrender of suspects or convicted persons in one member State when they are sought by the authorities of another. In order to do that, certain offenses are listed in the Framework Decision that give rise to surrender on the basis of a European arrest warrant without verification of the "double criminality" of the act. "Double criminality" means that the act is a criminal offense in both country issuing the warrant and in the country of surrender. According to the Framework decision, there is no need to check that the act is a criminal offense in the state of surrender if it is an offense punishable in the issuing State by a custodial sentence for a maximum period of at least three years.
A Belgian association of lawyers, the "Advocaten voor de Wereld", challenged the Belgian implementing legislation (see generally this questionnaire) before the Belgian Court of Arbitration (which is in fact a court, not an arbitration panel). That Court then referred several questions to the Court of Justice on the validity of the Framework Decision itself.
The Court of Justice held that the Framework Decision was perfectly valid.
The ‘Advocaten voor de Wereld’ contended that the removal of verification of double criminality for certain offences listed in the Framework Decision was contrary to the principle of legality in criminal matters. According to that principle, legislation must define clearly offences and the penalties which they attract. The Court of Justice disagreed that the Framework Decision infringed that principle. It pointed out that the Framework Decision does not harmonize the criminal offences in question in respect of their constituent elements or of the penalties which they attract. Consequently, the exact nature of the offenses and the penalties applicable are still determined by the law of the issuing member State, which must respect fundamental rights and fundamental legal principles, including the principle of the legality of criminal offences and penalties. The fact that the Framework Decision dispenses with verification of double criminality for certain categories of offenses does not change the role or obligations of the issuing member State in that respect.
The ‘Advocaten voor de Wereld’ submitted that the Framework Decision infringed the principle of equality and non-discrimination because certain offenses were listed as not requiring "double verification" whereas other offenses continued to require it. Again the Court disagreed. It held that the offenses on the list of those no longer requiring "double verification" were serious ones, justifying the simpler procedure for extradition.
Rather oddly, the ‘Advocaten voor de Wereld’ submitted also the member States should have concluded a convention on the subject of extradition and not a Framework Decision. The Court conceded that the European arrest warrant could equally have been the subject of a convention, but it held that it is within the Council’s discretion to give preference to the legal instrument of the framework decision in the case where, as in the present, the conditions governing the adoption of such a measure are satisfied.
This judgment of the European Court of Justice is a neat sequel to the previous judgment of the German Constitutional Court of July 18th 2005 we noted a while back.
On the European Arrest Warrant generally, see this interesting House of Lords Report from 2006.
The ECJBlog also has a write up on the judgment of the Court of Justice.
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