The double criminality in the European Arrest Warrant system: the need for a realistic exegesis of the principle of mutual recognition. Notes regarding the Puigdemont case
DOI:
https://doi.org/10.18042/cepc/rdce.61.07Keywords:
International judicial cooperation, mutual recognition, Framework Decision 2002/584, double criminality, jurisprudence, Court of Justice of the European Union.Abstract
Getting to know the functioning of the European Arrest Warrant (EAW), based on mutual recognition, requires a deep understanding of this principle and a realistic analysis free of expectations set aside of its real operability.
The requisite of double criminality in extradition matters, with unique characteristics in the EAW, follows transposition patterns that have on many occasions chosen to raise the lack of correspondence from the category of optional ground for a refusal to mandatory ground, which de facto equals the lack of double criminality to a refusal of surrender. Frequently the correspondence of crimes between Member States is not exact, the facts are partially coincident with the definition of the Criminal Code of the Member State of execution or do constitute a crime but different from that for which the surrender is requested. These factors are subject to analysis, in light of the Court of Justice of the European Union (CJEU) case law, on the grounds of a specific case of application of Arts. 2.4 and 4.1 of the EAW Framework Decision (EAW FD) and the German transposition legislation, IRG, which are representative of the existing problems.
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