The Principle of Dual Criminality and the European Arrest Warrant

Abstract

Under the European Arrest Warrant (EAW) system, Member States of the European Union have to arrest and surrender individuals on request of judicial authorities of other Member States, with the aim of making Europe an area of security and justice. This system of co-operation in criminal matters is controversial because of the (partial) abolition of the dual criminality verification. Because of this abolition the EAW system is thought to be fundamentally different from extradition. In this paper, which will appear as a chapter in the book 'European Arrest Warrant in Practice' (T.M.C. Asser Press/Cambridge University Press), the author describes how the EAW has been implemented in practice, especially with regard to the dual criminality requirement. The analysis shows that the EAW may not be so different from extradition after all. Moreover, the author argues that since extradition and surrender under the EAW authorize infringement on human rights, namely the right to liberty (Art. 5 ECHR), the legality principle should be considered applicable (which regrettably the European Court of Justice has not done). The rather vague descriptions of categories in Art. 2-(2) EAW Framework Decision do not meet the requirement of 'lex certa' of the principle of legality. The author is of the view that the dual criminality requirement is connected to the legality principle: citizens and judicial authorities should be in the position to know which acts may lead to extradition (including: surrender), and which don't. With the dual criminality principle abolished for 'list crimes' under the EAW, the legality principle should be given a more vigorous role to play in the EAW context.