Council Framework Decision 2002/584/JHA introduced the European Arrest Warrant (EAW) to provide a speedier and more simplified extradition facility between EU Member States. It replaced the more cumbersome and time-consuming extradition arrangements, based on a 1957 Council of Europe Convention, with a more streamlined surrender procedure which dispensed with (or diluted) most of the established restrictions on extradition. Critically the EAW procedure was a vital component in the establishment of an EU area of freedom, security and justice in which judicial decisions on criminal matters could move freely and be enforced on the basis of mutual recognition and trust in each other’s criminal justice procedures and standards.
Not surprisingly, such a novel and ambitious instrument continues to generate a substantial volume of case law addressing the many issues that arise in its application across the diverse criminal justice regimes of 28 Member States. The latest example is provided by an interpretation handed down a few weeks ago by the EU’s Court of Justice (CJEU), sitting as a Grand Chamber, in the case of Procureur-generaal v X (C-717/18).
The defendant had been convicted in Spain on 21 February 2017 for the offence of glorification of terrorism and humiliation of the victims of terrorism in respect of conduct (a ‘rapper’ song performance) between 1 January 2012 and 31 December 2013. He was sentenced to imprisonment for two years. Under Spanish law that was the maximum sentence applicable to the conduct at the time. The maximum sentence for the offence was increased to three years’ imprisonment in March 2015, but that only applied to conduct occurring from that date.
Before serving his sentence, the defendant went to Belgium. In May 2018, the Spanish authorities issued an EAW for his surrender from Belgium to serve the sentence. In the EAW proceedings before the Belgian court (Ghent Court of First Instance), an issue arose over the application of what is known as the “double criminality” rule. This refers to a long-standing principle whereby extradition/surrender will normally be refused, in the absence of verification that the conduct for which the person is wanted in the issuing State would also constitute an offence in the executing State if it occurred there. The Ghent Court in the defendant’s case refused to execute the EAW as it considered that the double criminality rule was not satisfied. On appeal by the prosecutor, the Ghent Court of Appeal referred to the CJEU for a ruling on whether the double criminality rule applied in respect of the offence for which the defendant’s surrender was sought.
The double criminality issue
One of the more dramatic and controversial features of the EAW legislation is that the double criminality rule has largely been removed from 32 prescribed offences, or categories of offence. It is sufficient if the conduct (or alleged conduct) of the requested person comes within the scope of any of these offences, as defined by the law of the issuing Member State, and is punishable by a maximum sentence of at least three years imprisonment in that State. Where those requirements are satisfied, there is no need to verify compliance with the double criminality rule.
Clearly, by increasing the maximum sentence for the terrorism offence in question from two years to three years, the Spanish authorities moved it from the offences for which double criminality had to be verified to the prescribed offences for which double criminality did not need to be verified. Accordingly, when seeking the surrender of a person from another Member State, they would not have to establish that the law of that State (Belgium in this instance) recognised an offence consisting of the same conduct.
The issue that arose in the X case was whether that change in Spanish law applied to the EAW for the defendant, even though the maximum sentence applicable to him under the law at the time he was sentenced was two years imprisonment. In other words, when the EAW legislation applied a punishment threshold of imprisonment for three years as the threshold for the double criminality exemption, was it referring to the punishment generally applicable to such an offence under domestic law at the time the EAW was issued, or was it referring to the punishment applicable under the law at the time of the facts of the case giving rise to the EAW? The difference was critical on the facts of X. Under the former interpretation, double criminality would not have to be verified in the execution of the EAW. Under the latter interpretation, it would have to be verified.
The EAW provisions
Article 2 of the Framework Decision does not specify which version of the domestic law in the issuing State is applicable for the purposes of the double criminality exemption, where that law has been amended between the time of the conduct for which the EAW was issued and the time of issue of the EAW. Article 2(1) stipulates generally that an EAW may be issued for acts punishable by the law of the issuing Member State by a custodial sentence for a maximum period of at least twelve months or, where sentence has already been imposed, by a custodial sentence of at least four months. The defendant in the instant case clearly comes within the latter category. Article 2(2) goes on to make further provision for a select group within that category. It stipulates that for certain prescribed offences punishable under the law of the issuing Member State by a maximum custodial period of at least three years, verification of double criminality is not required. The two provisions are clearly linked, but it is not wholly clear which version of the domestic law applies for the purposes of art.2(2).
Following its settled case law, the Court looked not just at the literal wording of the provision, but also at the context in which it appears, and the objectives pursued by the rules of which it is part.
The literal interpretation
A literal interpretation might suggest that the double criminality provision in art.2(2) is meant to apply simply if the offence is on the prescribed list, and is punishable under the law of the issuing State by a custodial sentence of at least three years at the time of issue of the EAW (even if the offence could not have attracted such a sentence at the time it was committed). Such an interpretation would attach significance to the difference in wording where art.2(1) refers to “acts” punishable by the law of the issuing State (suggesting that it relates to the facts of the instant case), and where art.2(2) refers to the punishment applicable to certain prescribed “offences” (suggesting that it relates to the offence independent of the instant case).
The contextual interpretation
The Court rejected the literal interpretation. Taking a contextual approach, it noted that under art.2(1) a person convicted of an offence could be surrendered where the sentence imposed was imprisonment for at least four months. Clearly, art.2(1) could only be referring to a sentence actually imposed under the law as it existed at the time of the conduct constituting the offence, as distinct from a sentence that could have been imposed under the law at the later time when the EAW was issued. The Court considered that the same must apply to art.2(2). To do otherwise would undermine the consistent application of the two provisions which clearly were meant to operate in harmony. The mere fact that art.2(1) referred to “acts” punishable by the law of the issuing State, while art.2(2) referred to offences”, was not a sufficient difference to support a contrary interpretation.
The Court found further support for its contextual interpretation in art.8 of the Framework Decision which specifies the minimum official information that must be set out in the EAW form by the issuing Member State. That information is intended to enable the executing judicial authority to give effect to the EAW swiftly. It includes information on the penalty imposed, or scale of penalties applicable, and that must be set out in a form contained in an Annex to the Framework Decision. This form asks for the maximum length of custodial sentence that may be imposed under the law of the issuing State, as well as the length of sentence actually imposed, in the case.
As the Court points out, this information relates to concrete elements of the instant case in respect of which the EAW has been issued. It follows that it is referring to the issuing State’s law applicable to the facts of that case, as distinct from a later version applicable to the offence at the date of issue of the EAW. It is the former, therefore, that must be applied by the executing judicial authority in determining whether the penalty threshold for the application of the double criminality exemption in art.2(2) has been satisfied.
The purposive interpretation
Turning to the purpose of the EAW Framework Decision, the Court emphasised the objective of achieving a simplified, accelerated and effective surrender arrangement with a view to contributing to an EU area of freedom, security and justice based on mutual confidence between Member States. In the Court’s view that objective would be undermined if the executing judicial authority could not proceed on the basis of the issuing State’s law on the penalty threshold for the offence as stated in the EAW application (i.e. the law applying to the facts giving rise to the instant case). The executing judicial authority could experience difficulty in ascertaining the applicable version of the law of the issuing State where that law had been amended after the date of the facts giving rise to the instant case. This would also generate delay and uncertainty contrary to the purpose of the Framework Decision.
In addition, adopting the law on the date of issue of the EAW, as the operative date for the art.2(2) double criminality provision, would undermine the requirements of foreseeability encompassed by the principle of legal certainty. It would bring within the scope of the double criminality provision persons who, at the time of committing the offence, could not have foreseen that they would come within that provision. Moreover, it would permit Member States to bring such persons within the scope of the provision by the simple expedient of subsequently amending the penalties in respect of the offences for which their surrender was sought.
The Court’s interpretation does not make it easier to secure the surrender of the defendant in this case. It will be necessary to verify compliance with the double criminality rule; i.e. that the conduct of which he was convicted would amount to an offence under the law of the executing State had it occurred there.
Commendably, however, the Court’s interpretation promotes a more consistent, coherent and predictable approach to the enforcement of EAWs generally, and the application of the double criminality exemption in particular. In doing so, it resists the temptation to allow Member States the freedom to facilitate the surrender of convicted persons by amending their domestic law to increase the maximum penalties applicable after they had committed the offence and before their surrender was sought. This, of course, can also be interpreted as a concession to the rights of the offender and due process values.
Implications for Bailey case
Although the decision in X is concerned specifically with the interpretation of the art.2(2) double criminality provision, there is room to argue that it has broader application. In particular, the Court reacted against the notion that a State could deprive a requested person of protections he would otherwise have enjoyed, through the simple expedient of subsequently changing the penalties that were applicable to the offence in question. This could have implications more broadly for a State changing its criminal law in a manner that would have the effect of removing an existing prohibition on surrender in respect of conduct that had already occurred. Presumably, the CJEU would not allow the State to take advantage of such expediency in seeking to secure the surrender of a person in respect of such conduct.
The extraordinary Bailey case, currently before the Irish courts again pursuant to a third EAW for the surrender of Ian Bailey (an English national resident in Ireland) to France, could provide an interesting example. In 2012, the Irish Supreme Court overturned the execution of an EAW for his surrender to France to be tried for the murder (in Ireland) of Sophie Toscan de Plantier (a French national). The basis of the Supreme Court’s decision was that, under Irish law at the time, the Irish authorities could not have sought the surrender of an English national (such as Bailey) from France for the alleged murder of an Irish national in France. As such, the French application did not satisfy the principle of reciprocity which, in the Supreme Court’s view, was required for the execution of an EAW in the particular circumstances of this case.
In 2019, the Irish State amended its law so that a foreign national resident in Ireland (such as Bailey) could be tried in Ireland for murder or manslaughter committed abroad. This could have the effect of overcoming the reciprocity obstacle and remove the prohibition on Bailey’s surrender. The change in the law was effected at a time when it would have been within the contemplation of the Irish authorities that France would eventually issue a third EAW for Bailey’s surrender. The CJEU’s decision in the X case suggests that they may not be permitted to apply that change in the law against Bailey, should they attempt to do so.