Photo by Björn Grochla on Unsplash
12th April 2018
The decision by the Supreme Regional Court for criminal cases of Schleswig-Holstein (RC), in which capital (Lübeck) Thomas Mann was born, has somewhat surprised the Spanish legal world, not because it was impossible within its framework, but because it was not foreseeable according to the case law of the Court of Justice of the European Union (CJEU).
The legal framework of the decisions of the investigating judge of the (Spanish) Supreme Court which issued the European arrest warrant is the same one, the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States.
A Framework Decision is a European Union legislative instrument, prior to the Lisbon Treaty, with similar effects to those of a Directive and therefore its addressees are Member States, which bind themselves to adapt their own national laws to the Union law. This instrument was used, particularly, to develop what was then called the third pillar of the Union regarding freedom, security and justice.
As stated in the preamble of the Framework Decision, “the mechanism of the European arrest warrant is based on a high level of confidence between Member States”.
The European Arrest Warrant is nothing but a “a judicial decision issued by a Member State with a view to the arrest and surrender by another Member State of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order.” (Art.1.1 FD 2002/584/JHA). According to the Framework Decision, Member States shall execute any European arrest warrant on the basis of the principle of mutual recognition and in accordance with the provisions of this Framework Decision (Art.1.2 FD 2002/584/JHA).
The Decision regulates the option for Member States to allow their national courts to refuse the execution of the European arrest warrant, in case the acts for which the European arrest warrant has been issued constitute an offence under the law of the executing Member State (Arts. 2.4 and 4.1 FD 2002/584/JHA), unless the offence is listed in article 2.2 of FD 2002/584/JHA. This is known as the principle of double criminality. Therefore, for the executing court to execute the warrant, it is necessary that it assesses the acts for which the issuing court has issued the warrant, to determine if those acts also constitute an offence according to its national legislation, unless it is one of the offences listed in the abovementioned article.
The criminal offence of «rebellion» which is one of the offences of which Mr. Puigdemont is accused of is not listed in Article 2.2, so based on their local laws, the RC had the obligation to verify whether there was double criminality, meaning, they had to verify if the acts that motivated the issued arrest warrant by the Spanish Supreme Court constituted a criminal offence according to German law.
As with almost everything in Law, the issue is not as simple as it looks at first sight. But as we are dealing with Union Law, the case law that binds all courts, be it Spanish, Belgian, Scottish or German, is that of the CJEU.
Accordingly, I would like to highlight the Judgement of the Fifth Chamber of 11 January 2017, the Grundza case (C289/15) and, particularly, the opinion of Advocate General M. Bobek, delivered on 28 July 2016. The judgement was passed as a result of a reference for a preliminary ruling requested by the Krajský súd v Prešove (Presov Regional Court, Slovakia).
In his opinion, the Advocate General notes of three key aspects regarding the basis and background of the double criminality condition. Firstly, this condition is linked to the principle of legality and, more specifically, the foreseeability of sanctions (nulla poena sine lege) (para. 31). Secondly, double criminality has been a traditional condition for extradition (para. 32). Thirdly, the double criminality condition is embedded in the principles of sovereignty, reciprocity and non-intervention, which constitute the fundamental elements of cooperation between States enshrined in instruments of international public law (para. 33). By contrast, the system of intra-EU judicial cooperation in criminal matters relies primarily on the principle of mutual recognition (para. 34). This means that once a judicial decision has been adopted in one Member State, it ‘shall be recognised and executed in other Member States as quickly as possible and with as little conflict as possible, as if it was a national decision’ (para. 35).
The acts around which base this case are the following:
“Mr Grundza is a Slovak national. He was intercepted driving a car on the streets of Prague in violation of a previous decision of a Czech administrative authority banning him from driving motor vehicles. Subsequently, he was sentenced by a Czech court to 15 months’ imprisonment for, inter alia, ‘obstructing the implementation of an official decision’. On the basis of Framework Decision 2008/909/JHA, (2) the competent Czech judicial authority requested the judgment against Mr Grundza to be recognised and the sentence to be served in Slovakia. However, the Slovak court seised of that request has doubts over whether the condition of double criminality is satisfied in the present case given that the decision obstructed had been issued by a Czech authority and not by a Slovak authority.”
It is important to note at this stage that the FD 2008/909/JHA, relevant for this case, regulates the application of the principle of mutual recognition to judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the European Union. However, the condition of double criminality for the recognition of judgements and the enforcement of final custodial sentences is the same one according to arts. 7.3 and 9.1 d) of FD 2008/909/JHA.
As Advocate General Bobek notes in his opinion, establishing a system to verify the condition of double criminality is not an easy task:
“22. The question referred by the national court relies on the terminological distinction between in abstracto and in concreto assessments of the condition of double criminality.
That terminology is frequently used in criminal law doctrine. The specific and precise content of those terms (in concreto and in abstracto) is, however, less clear. It seems to be understood differently by various authors.
Trying to synthesize the different definitions, he notes that “When looking for a common denominator within the various definitions, it could be perhaps suggested that the assessment of double criminality in abstracto calls for verification of the question of whether the behaviour and acts referred to in the judgment of the issuing State would amount to a criminal offence if committed on the territory of the executing State.
The assessment of double criminality in concreto seems to require much more, including the satisfaction of other conditions of criminal liability as defined by the laws of the executing state, such as the age or mental state of the accused or consideration of further factual circumstances in which the act was committed.”
Between these two options, the Advbocate General identifies different levels of abstraction in order to create the test necessary to verify if the double criminality condition is met or not (para. 27).
The Advocate General bases his interpretation on Article 7.3 FD 2008/909/JHA, which as we can see is comparable to art. 2.4 FD 2002/584/JHA:
|7.3 FD 2008/909/JHA||2.4 FD 2002/584/JHA|
|3. For offences other than those covered by paragraph 1, the executing State may make the recognition of the judgment and enforcement of the sentence subject to the condition that it relates to acts which also constitute an offence under the law of the executing State, whatever its constituent elements or however it is described.||4. For offences other than those covered by paragraph 2, 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.|
Therefore his conclusions are applicable to the interpretation of both legal instruments.
The Advocate General notes, firstly, that “by stressing the flexible approach to be taken to the constituent elements of the criminal offence, Article 7(3) of Framework Decision 2008/909 makes it clear that there does not have to be an exact match between all of the components of the crime, as defined respectively by the law of the issuing and executing Member States” (para. 48). “Second, by insisting on flexibility with regard to the description of the criminal offence, Article 7(3) of the framework decision makes it equally clear that there is no need for an exact match in the name or taxonomy of the offence between the issuing and the executing Member State.” (para. 49). And finally “what (is) relevant, and indeed decisive, is a match between the basic factual elements of the criminal act, as reflected in the judgment of the issuing State, on the one hand, and the definition of a criminal offence provided by the law of the executing State, on the other”. (para. 50).
In paragraphs 51 and 52, Mr Bobek states that the assessment of double criminality thus requires essentially two steps; (1) delocalisation which involves taking the basic characteristics of the act committed in the issuing State, and considering that act as if it had occurred in the executing State and (2) subsumption of those basic facts under whatever fitting offence as defined by the law of the executing State. For that subsumtion to operate, “the questions to be asked by the judicial authority of the executing State in the process of such a ‘conversion’ are: can the act(s) that have led to the judgment in the issuing State be subsumed under any criminal offence provided for by the criminal law of the executing State? Would such an act be considered criminally punishable per se if committed on the territory of the executing State?”.
In doing so, it must be underlined that “the match is not to be sought between the respective normative definitions of the criminal offence in the legal systems of the issuing and executing States.” (para. 54). “It is quite clear that the intended conversion of an offence from the issuing state to the executing state is supposed to be ‘diagonal’ (basic factual elements from the issuing State being subsumed under the laws of the executing State), not ‘horizontal’ (whereby a match would be sought between the normative definitions of an offence in both States)” (para. 56).
The judgement of this preliminary ruling notes that “it is not appropriate to base the analysis on an in concreto or an in abstracto assessment of the condition of double criminality”, so it doesn’t expressly accept the Advocate General considerations on this point, but it doesn’t reject them either, implicitly accepting many of them.
The judgement then states that “it should be noted, as observed by the Advocate General in point 47 of his Opinion, that that provision circumscribes the scope of the assessment of double criminality in that it requires the competent authority of the executing State to verify whether the acts in question ‘also constitute an offence’ under the national law of that State, ‘whatever its constituent elements or however it is described’.” (para. 33). “The necessary and sufficient condition for the purpose of assessing double criminality resides in the fact that the acts giving rise to the sentence imposed in the issuing State also constitute an offence in the executing State. It follows that the offences do not need to be identical in the two Member States concerned.” (para. 34).
In paragraph 35, the Court states that “That interpretation is borne out by the words ‘whatever [the] constituent elements’ of the offence as laid down in the executing State and ‘however it is described’, which make it clear, as the Advocate General observed in points 48 and 49 of his Opinion, that there does not have to be an exact match between the constituent elements of the offence, as defined in the law of the issuing State and the executing State, respectively, or between the name given to or the classification of the offence under the national law of the respective States.” “Accordingly, that provision advocates a flexible approach by the competent authority of the executing State when assessing the condition of double criminality, both as regards the constituent elements of the offence and its description.” (para. 36).
The Court, in its judgement notes that “Member States (may) decline to recognise a judgment and enforce a sentence in respect of conduct which they do not consider to be morally wrong and which does not, therefore, constitute an offence.” (para. 45).
And they finally note that “the condition of double criminality is an exception to the general rule of recognition of judgments and enforcement of sentences. Accordingly, the scope of the grounds for refusing to recognise a judgment or enforce a sentence, on the basis of lack of double criminality, as provided for in Article 9(1)(d) of Framework Decision 2008/909, must be interpreted strictly in order to limit cases of non-recognition and non-enforcement.” (para. 46).
The Court answers to the request for preliminary ruling noting that it “the competent authority of the executing State must ascertain, 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.” (para. 49).
What the judgement of the RC does is comparing the acts described in the European Arrest Warrant with their own criminal Law in an strict manner, by seeking in acts described in the Spanish warrant the same level of violence as its required according to the German Law and case law, and as it doesn’t find it, the RC rejects the existence of double criminality in this case. That being said, and with all due respect that the decision merits, this interpretation ignores the literal interpretation of the Framework Decision, which excludes that all constituent elements of the offence need to match those defined in the law of the executing State (art. 2.3 FD 2002/584/JHA), and the EU case law that has interpreted it. Considering that the EUCJ has stated that there does not have to be an exact match between the constituent elements of the offence, as defined in the law of the issuing State and the executing State. For the decision to have been in accordance with the quoted case law, it would have been necessary for the RC to consider that the actions of Mr. Puigdemont, had them been conducted in Germany, wouldn’t have been considered morally wrong or constituted an offence. The “judgement” that the RC has passed is more akin to a full trial, as it assesses the level of violence according to German case law, as opposed to a validation of double criminality in order to execute a European Arrest Warrant. It must be highlighted that the German Court does not deny that the condition of violence might be fulfilled, what it does is to assess, as if it was a full trial in which the acts would have been presented as uncontested, its intensity to reject the execution of the European Arrest Warrant.
The issue at hand here is whether it wouldn’t be necessary to revise the mechanism if there are no guarantees of its use according to the EUCJ case law, or that such a rigid interpretation might destroy the European judicial area.