European Arrest Warrant, the Procedural-Substantive Criminal Law Dualism and the Principle of Legality. Another Brick in the Wall?

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Valtònyc is a 25 year old rapper who was sentenced to three years of prison in Spain in 2018 for glorification of terrorism and humiliation of the victims of terrorism (among other charges) through his lyrics. He fled to Belgium after being sentenced, and the Spanish authorities issued a European Arrest Warrant to have him extradited back to Spain. The case is now pending a preliminary ruling from the Court of Justice of the European Union. Yesterday Advocate General (AG) Bobek delivered an Opinion in the case to aid the Court in their ruling.

Minimum Penalty Threshold

The AG assessed what the minimum penalty threshold is before a European Arrest Warrant (EAW) can be issued. Under the law applicable to Valtònyc’s actions at the time he committed them, he could be punished by a maximum custodial sentence of two years. However, an amendment to the Spanish Criminal Code made in 2015 increased the maximum custodial sentence for that offence to three years.

Article 2(1) of the EAW Framework Decision (FD) states that an EAW to enable a sentence to be carried out may be issued where that sentence is for at least four months. Article 2(2) FD drops the principle of double criminality for 32 offences – a list which includes ‘terrorism’ – if those offences are punishable by a custodial sentence of a maximum period of at least three years as defined by the law of the issuing state. Article 2(3) FD states that offences can be added to that list by a unanimous decision of the Council, whereas Article 2(4) FD clarifies that the executing judge can still subject surrender to verification of double criminality if the offences on which the EAW is based are not included in the list.

Has the minimum threshold under Article 2(2) FD been met by the EAW in question? Should the penalty threshold applicable to the specific case (two years) or that laid down in the law at the precise moment the EAW was issued (three years) apply? The AG found that the relevant penalty threshold was that set out in the applicable law at the time the offence was committed. This conclusion was based on a systemic argument (looking at the information required by the FD when issuing a EAW) and on the logic of the EAW system. Firstly, the interpretation espoused by the AG indeed offers ‘a foreseeable and stable frame of reference’ (Opinion, para. 73). Secondly, the CJEU undoubtedly aims at ensuring effectiveness of the law in its interpretations of EU law. That, however, is structural effectiveness (namely of the FD operation) – rather than effectiveness of the specific case – and in a way that is compatible with respect for fundamental rights.

Principle of Legality

The AG also touched upon the importance of the principle of legality in his Opinion. While upholding the CJEU’s (and ECtHR’s) stance that the surrender mechanism is not directly related to Article 47 of the Charter/Article 7 ECHR, the AG acknowledged that the principle of legal certainty is highly relevant in the context of the EAW system.

Though not extremely controversial – the AG’s conclusion is evidently the most logically sound one that can be reached, and in tune with the spirit of the FD – this Opinion is important, as it brings to the fore once again the interpretation of the principle of legality in relation to the substantive-procedural criminal law dualism. This complex liaison is long-standing, and it underlies different seminal cases in EU criminal law (Pupino, Advocaten, Taricco I and II). While waiting for the CJEU’s judgment, we can recognise that this case confirms that a ‘procedural’ measure – such as the EAW FD – can have a significant substantive impact terms, and that raises doubts on the appropriateness of a making a formal distinction between the two fields when it comes to the principle of legality.

One more thing…

A final note: even though the issue was not the main focus of the reference, it should be noted that the Ghent Court of First Instance had initially rejected the EAW as it did not consider the offence at stake as falling under ‘terrorism’, and therefore that the case did not fall within the scope of Article 2(2). The extent of scrutiny that the executing judge is allowed in this respect is certainly another uneasy legal question itching to reach the judges in Luxembourg.

About the author

Leandro Mancano

Leandro Mancano is Lecturer in EU Law, School of Law, at Edinburgh Law School and the author of "The European Union and Deprivation of Liberty: A Legislative and Judicial Analysis from the Perspective of the Individual" (Hart Publishing, 2019).

By Leandro Mancano

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