Constitutional’ challenges against the EAW at the EU level

As Framework Decisions need to be implemented into national law, the legality of such acts could be challenged both at the national and the European level. In this section we will focus on a brief summary of a

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No person should be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment. (Section 13 of the Preamble of the EAW Framework Decision)

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The full list of optional grounds for refusal is listed in Art. 4 of the EAW Framework Decision.

The legal characteristics of the European Arrest Warrant, its implementation in...

case in which the legality of the EAW Framework Decision itself was also questioned before the Court of Justice of the EU.

Advocaten voor de wereld, a Belgian non profit making organization brought an action against the act which implemented the EAW into Belgian law, seeking the annulment of the national act. The Belgian court (Arbitragehof) in turn initiated a preliminary ruling procedure, and asking various questions regarding the validity of the Framework Decision.23 The organization essentially made three pleas, claiming that the Framework Decision was invalid because (1) the subject-matter of the European arrest warrant ought to have been implemented by way of a convention and not by way of a framework decision; (2) the EAW infringes the principle of equality and non-discrimination and, finally, that (3) it fails to satisfy the conditions of the principle of legality in criminal matters. The questions by the Belgian court corresponded with these. Regarding our subject, the third question is of most relevance, thus we will limit ourselves to the examination of that query.24

The principle of the legality of criminal offences and penalties (nullum crimen sine lege and nulla poena sine lege) are perhaps the most important principles of criminal law. The question of the Arbitragehof questioned whether Advocaten voor de wereld was right in pointing out that to the extent to the EAW Framework Decision dispenses with verification of the requirement of the double criminality of the 32 offences mentioned in it, Article 2(2) of the Framework Decision is contrary to the principle of legality in criminal matters.

Case C-303/05 Advocaten voor de Wereld [2007] ECR I-3633. 24

To give a very brief summary of the other answers to the other two questions: Regarding the first the Court stated that while it is true that the European arrest warrant could equally have been the subject of a convention, it is within the Council’s discretion to give preference to the legal instrument of the framework decision in the case where, as here, the conditions governing the adoption of such a measure are satisfied. As to non-discrimination, which was used to criticise the choice of the 32 categories of offences listed in the Framework Decision, the Court held that ‘the Council was able to form the view, on the basis of the principle of mutual recognition and in the light of the high degree of trust and solidarity between the Member States, that, whether by reason of their inherent nature or by reason of the punishment incurred of a maximum of at least three years, the categories of offences in question feature among those the seriousness of which in terms of adversely affecting public order and public safety justifies dispensing with the verification of double criminality’. See paras 23-43 and 55-59 of the judgment.

Anita Blagojević– Csongor Herke– Ágoston Mohay

The Court began by stressing that the legality principle of criminal offences and penalties was a general principle of Community law which the institutions of the EU are obliged to respect, and that the legality of legal acts of the EU could be reviewed regarding their conformity with this fundamental principle. The challenge was thus in principle accepted.

Advocaten voor de wereld claimed that the list of 32 offences regarding which the traditional double criminality requirement of extradition is abolished, breaches the principle of legality, as the offences set out in the list ‘are not accompanied by their legal definition but constitute very vaguely defined categories of undesirable conduct’. Thus the guarantee that criminal legislation must be precise, clear and predictable allowing each person to know, at the time when an act is committed, whether that act constituted an offence or not, is not met.

The Court held that the principle means among others that legislation must clearly define offences and the penalties which they attract. It is true that in the case of the list of 32 offences, double criminality does not need to be verified, but only if they are punishable in the issuing Member State by a custodial sentence or a detention order for a maximum period of at least three years and as they are defined by the law of the issuing Member State. Subsequently, as the Court pointed out, even if the Member States reproduce word-for-word the list of the categories of offences for the purposes of implementation, the actual definition of those offences and the penalties applicable are those which follow from the law of the issuing Member State. The definition of offences and of the penalties corresponding to the categories contained in the list continue to be matters determined by the law of the issuing Member State, which must respect fundamental rights and fundamental legal principles as enshrined in Article 6 EU, and, consequently, the principle of the legality of criminal offences and penalties. The Court concluded that the principle of legality regarding criminal matters is thus guaranteed, and upheld the legality of the EAW Framework Decision.

VI. The Implementation of the European Arrest Warrant in