Abstract
AbstractIn contrast to traditional extradition law, the political offense exemption has been abolished within the framework of the European Arrest Warrant (EAW). Notwithstanding its overall success, the EAW does not constitute an adequate instrument with regard to political offenses. In light of the recent case of the former Catalan President, Carles Puigdemont, the abolition has proven to be too hasty and the justificatory force behind the principles of mutual trust and recognition is, with respect hereto, rather limited. The damage caused to these principles by upholding the exemption would be negligible, given the small number of cases—Puigdemont being the first political offender requested under the aegis of the EAW. However, the potential benefits are substantial, given that the exemption provides for a higher level of human rights protection—analogous to the values of European Union (EU). Solely relying on the double criminality requirement in order to properly take into account the specificities of the Member States’ legal systems essentially positions the judges at the forefront of where mutual trust and constitutional identity collide. Moreover, the exemption prevents states from intervening in other states’ internal political conflicts, through the medium of criminal law.
Highlights
In contrast to traditional extradition law, the political offense exemption has been abolished within the framework of the European Arrest Warrant (EAW)
The general idea of the EAW was first publicly addressed at the Tampere European Council on October 15–16, 1999, with the creation of the Area of Freedom, Security and Justice (AFSJ).[4]
In addition to the simplified extradition procedure, the double criminality requirement—see below at Subsection C(I)(1.1) —is subject to restrictions, as it is not verified with regard to thirty-two categories of offenses listed in Article 2(2) of the EAW Framework Decision, provided that these offenses are punishable in the issuing Member State by a custodial sentence or a detention order of a maximum period of at least three years.[21]
Summary
The general idea of the EAW was first publicly addressed at the Tampere European Council on October 15–16, 1999, with the creation of the Area of Freedom, Security and Justice (AFSJ).[4]. (Auslieferung), “requesting state” (ersuchender Staat), and “requested state” (ersuchter Staat)— instead of the newly introduced terms of “surrender” (Übergabe), “issuing state” (Ausstellungsstaat), and “executing state” (Vollstreckungsstaat).[20] In addition to the simplified extradition procedure, the double criminality requirement—see below at Subsection C(I)(1.1) —is subject to restrictions, as it is not verified with regard to thirty-two categories of offenses listed in Article 2(2) of the EAW Framework Decision, provided that these offenses are punishable in the issuing Member State by a custodial sentence or a detention order of a maximum period of at least three years.[21] Likewise, the potential grounds for refusal of execution are limited and exhaustively listed in Articles 3, 4, and 4(a) of the EAW Framework Decision.[22] The sole mandatory grounds for the non-execution of an EAW are amnesty, the principle of ne bis in idem, and the age of the requested person—that is, minors.[23]. Compared to the previous provisions, the EAW contributes to a more effective attack on cross-border criminality and harmonizes the extradition process.[31]
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