Double criminality and the European Arrest Warrant: current trends and future developments in light of the KL case

Introduction

The interpretation of the double criminality requirement ¹ in Framework Decision 2002/584/JHA on the European Arrest Warrant (EAW) ² has been the subject of multiple decisions of the Court of Justice of the European Union (CJEU), including the recent KL case. ³ Therefore, it is incumbent to analyse the underlying facts and the questions referred to the CJEU, in order to assess the current and future implications. In particular, attention should be given to the concept of legal interest and to the principle of proportionality of criminal offences and penalties ⁴ under Article 49(3) of the Charter of Fundamental Rights of the European Union. ⁵

The KL case and the questions referred to the Court of Justice of the European Union

In 2016, the Italian authorities issued an EAW against Mr. KL for the purpose of enforcing a cumulative custodial sentence of 12 years and 6 months for a number of acts committed in the context of the demonstrations during the G8 Summit in Genoa (Italy) in 2001. ⁶ The criminal offences included: theft committed in conjunction with others and while carrying a weapon (punishable by 1 year’s imprisonment), devastation and looting (punishable by 10 years’ imprisonment), carrying a weapon (punishable by 9 months’ imprisonment), and detonation of explosive devices (punishable by 9 months’ imprisonment). The conviction decision was confirmed by the Court of Appeal of Genoa (which became enforceable after the dismissal of Mr. KL’s appeal before the Italian Court of Cassation). More specifically, with regards to the crime of devastation and looting, ⁷ Mr. KL was sentenced for seven acts, which were treated as a single offence (namely, damage to street furniture and public property, damage to and looting of a construction site, destruction of a bank’s premises, destruction of a car, destruction using fire of another bank’s premises, destruction using fire of another vehicle, and destruction and looting of a supermarket).

The French EAW proceedings were as follows. The Court of Appeal of Rennes required Italian authorities to forward the judgments of the Court of Appeal of Genoa and of the Italian Court of Cassation rendered in the Italian trial against Mr. KL. Initially, the Court of Appeal of Rennes refused to surrender Mr. KL on procedural grounds. This decision was later set aside. In fact, the French Court of Cassation referred the case back to the Court of Appeal of Angers, which decided to refuse the execution of the EAW for the criminal offence of devastation and looting (and the respective 10 years of imprisonment) while seeking clarification from the Italian authorities on whether they wished for the remaining crimes (totaling 2 years and 6 months of imprisonment) to be enforced in France. Both the Public Prosecutor at the Court of Appeal of Angers and Mr. KL filed an appeal before the French Court of Cassation against this ruling.

In turn, the French Court of Cassation referred three preliminary questions to the CJEU:

1. Whether the double criminality requirement is met where an EAW refers to the crime of devastation and looting which demands the element of breach of public peace, while the corresponding criminal offence in the executing Member State does not;

The Court of Justice of the European Union’s decision in the KL case

The CJEU responded to the three questions in the order outlined above, with the majority of the reasoning focused on the first question and the latter two being addressed in conjunction. In general terms, the Court relied on a systematic and a teleological interpretation, following a literal reading of Articles 2(4) and 4(1) of Framework Decision 2002/584/JHA.

The first question for the CJEU revolved around the double criminality requirement in relation to the difference in the legal interests protected in the criminal offences of the issuing Member State and the executing one.

The CJEU anticipated, by resorting to case Spetzializirana prokuratura, C-649/19, ⁸ that Articles 2(4) and 4(1) of Framework Decision 2002/584 have to be read taking into account the «context» and the «objectives» of the Framework Decision. ⁹ According to the Court, Article 2(4) provides that the facts for which the EAW is issued are covered by a crime in the executing Member State «whatever the constituent elements or however it is described» and Article 4(1) that the EAW may be rejected if there is no criminal offence applicable to them. Citing case Grundza, C-289/15, ¹⁰ the CJEU stated that the crimes do not need to be identical, meaning there does not need to be an exact match between their «name» or «classification». ¹¹ The executing Member State’s evaluation should be «whether the factual elements […] would also, per se, constitute an offence» under its own criminal laws. ¹² In light of this understanding of the two provisions, the CJEU emphasised that mutual recognition is the «cornerstone» of cooperation in criminal matters, as affirmed in Recital 6 of Framework Decision 2002/584. Therefore, the refusal to execute an EAW should be the exception rather than the rule, and non-execution grounds must be interpreted strictly, as clarified in joined cases Openbaar Ministerie, C-562/21 PPU and C-563/21 PPU. ¹³ Aligning with the Grundza case, this applies also with reference to the double criminality requirement. Given that Framework Decision 2002/584 is informed by its aims, those of «facilitat[ing]» and «accelerat[ing]» surrendering of individuals between Member States, it is inferred that if the legal interests protected in the respective statutes were required to be exactly coinciding these two objectives would be diminished. According to the CJEU, many criminal offences would not meet such a standard given the «minimal harmonisation in the field of criminal law at EU level». ¹⁴ In this connection, the Court relied on the Openbaar Ministerie joined cases in order to highlight the risk of disregarding one of the aims of Framework Decision 2002/584: combating impunity.

Drawing from these arguments, and concurring with Advocate General Rantos, the Court provided its response to the first question, establishing that if there is a difference in the legal interests protected under the definitions of the crimes in the respective national legislations, the double criminality requirement under Framework Decision 2002/584 is still satisfied, as long as the underlying facts are criminalised in both the issuing Member State and the executing one.

The second and third questions cover: the rejection of an EAW if the offence for which it is sent by the issuing Member State includes multiple acts, but only some of them correspond to a crime in the executing Member State; and if this reading is in line with the principle of proportionality under Article 49(3) of the Charter of Fundamental Rights of the European Union.

Although Articles 2(4) and 4(1) of Framework Decision 2002/584 do not explicitly provide for refusal based on this ground, the CJEU focused on the context and the objectives of Framework Decision 2002/584. Firstly, it ruled that the issuance of an EAW for the enforcement of a sentence consisting of multiple acts classified as one single offence is irrelevant for the purpose of rejection. The Court relied on the legal arguments provided in response to the first question (i.e., the strict interpretation of optional grounds for refusal, limiting non-execution instances, and the pursuit of the objectives of facilitating and accelerating surrenders and of combating impunity). It concluded that the fact that «only some of the acts […] constitute an offence […] cannot permit [...] to refuse to execute the European arrest warrant». ¹⁵ Referring to case X, C-717/18, ¹⁶ the CJEU reiterated that the EAW may only be subject to the conditions set out in Article 5 of Framework Decision 2002/584 («Guarantees to be given by the issuing Member State in particular cases»).

According to the Court, this understanding of Framework Decision 2002/584’s provisions is also in line with the principle of proportionality of criminal offences and penalties. Specifically, as it was anticipated in cases Piotrowski, C-367/16 ¹⁷ and IK, C-551/18 PPU, ¹⁸ the CJEU pointed out that respecting the principle of proportionality is «primarily within the responsibility» of the issuing Member State. ¹⁹ Furthermore, the Framework Decision does not include a mandatory or an optional ground of refusal based on proportionality. Therefore, when assessing double criminality, there is no requirement to evaluate whether the issuing Member State’s sentence complies with Article 49(3) of the Charter.

Finally, in line with the opinion of the Advocate General, the Court concluded that the double criminality condition is satisfied if only some of the acts constituting the crime for which the EAW is issued are considered a criminal offence in the executing Member State.

Legal interest and double criminality: Historic concepts at a crossroads

The ruling in the KL case by the CJEU is seen as a significant development in the ongoing trend of the eroding of the principle of double criminality in the field of cooperation in criminal matters. To better assess the implications of this approach, it is essential to delve into the reasoning of this decision, particularly regarding the concept of legal interest.

The legal interest (bene giuridico) ²⁰ protected by a criminal offence is one of its core-elements also because it expresses its meaning and purpose. By understanding the one that is defended by the crime at hand, it becomes possible to infer the rationale behind the introduction of the criminal offence by the national lawmaker and also to anticipate the scenarios that it is meant to regulate.

This may be seen by examining the particulars the KL case. The disparity between the Italian crime of devastation and looting and the French offences of destruction, damage, or theft accompanied by damage becomes evident. The Italian criminal provision, although not explicitly, seeks to protect and requires the impairment of public peace. ²¹ Conversely, the French ones are primarily concentrated on preventing harm to private property and do not encompass any public interest component. ²²

The crime of devastation and looting is closely tied to the management of situations where freedom of expression intersects with criminal law, such as violent protests and demonstrations. The contrast between the illustrated criminal laws carries significant implications, representing a democratic decision on how to prosecute certain behaviours that affect society and dictating the consequences for an individual’s liberty.

Indeed, the KL case shows that the CJEU has taken an important step in implicitly regulating the “autonomous concept” ²³ of legal interest or at least in categorising it with regards to the EAW. Especially, it defined it by tacitly referring to its meaning and its application in one of the Member States where it is part of the respective constitutional tradition, namely Italy. This development is noteworthy as it allows for the application of the notion of legal interest before the Court and confirms its addition to the acquis of cooperation in criminal matters, building upon its previous mention in the Grundza case. This recognition reinforces the influence of the legal interest as a preeminent factor in fostering common understanding within the European Union.

Despite the legal interest being now considered immaterial for the double criminality check in the context of the EAW, it may still play a pivotal role in other domains, such as the harmonisation of criminal offences and penalties. By elucidating the legal interest protected by a particular crime introduced through the implementation of an EU Directive in a Member State, a clearer and shared comprehension of the criminal offence at hand may be achieved among Countries and citizens alike. This newfound relevance of the legal interest also improves the drafting of EU legislation approximating the definition of crimes, as it underlines the logic behind their inclusion and provides a structure for improving the respect of human rights in criminal law at the intra-EU level.

That being said, interpreting the fulfillment of the double criminality requirement in the context of the KL case accentuates a diminishing status of this condition. The most relevant precedent in this field, the Grundza case concerning Framework Decision 2008/909/JHA on the mutual recognition of conviction decisions, ²⁴ still appeared to demand a certain level of verification of the alignment of the essential elements of the crime in question. In particular, it stated that the executing Member State should determine: «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». ²⁵ However, following the decision in the case under examination, this stage seems to no longer be necessary. In fact, no mention is made in the judgement of any further requirement other than the assessment of the possibility to punish the relevant conducts as such also in the executing Member State’s national legislation. ²⁶

This poses two problems: firstly, the reasoning behind reaching such a conclusion and secondly, the consequences in terms of protecting constitutional principles in criminal law.

Looking at the CJEU’s decision, it is apparent that no attention is given to the ratio of the double criminality principle. Indeed, not a single paragraph of the ruling addresses the various issues that arise when control over the similarity of criminal offences among Member States involved in an EAW is undermined. Instead, the judgement appears to be driven by two primary elements. Firstly, it aims to promote further integration in a common judicial area by lowering the standards for optional grounds of refusal. Secondly, it seeks to strengthen the logic of combating crime by minimising the risk of non-execution of conviction decisions across borders. Evidence of the “integrationist stance” may be found especially in the teleological interpretation of mutual recognition in the field of cooperation in criminal matters. ²⁷ As a result, refusal is considered the exception, and a strict reading of the corresponding grounds is demanded. The “tough on crime” narrative is visible in the paragraphs that view combating impunity as an objective of Framework Decision 2002/584. ²⁸ These paragraphs meticulously create a circular argument, suggesting that refusing an EAW weakens unity among Member States and hampers the enforcement of sentences against convicted felons. What seems to be lacking is careful balance between the conflicting themes at hand.

Indeed, the double criminality check is a traditional feature of international treaties on cooperation in criminal matters, yet its nature seems to be caught between being a prerogative of the State and serving as a safeguard for the individual. In sum, ensuring that a specific conduct is criminalised under the laws of a Country involves exercising one of its primary powers, particularly the power to deprive someone of his liberty. Nonetheless, it has immediate and important consequences on who is subject to the extradition mechanism.

For example, if a person was convicted for having consensual same-sex relations in a certain Member State that later issued an EAW for it, it would most certainly be a display of the sovereignty of the executing Member State if the said request was rejected. At the same time, it would also uphold the fundamental rights of the individual involved in the surrender proceedings. ²⁹ It is important to note that extreme cases like this one are highly unlikely within the current EAW system, given the shared principles that underpin both national and EU legal regimes. Measures are in place to prevent such occurrences, and it is precisely to avoid discriminatory requests that a dedicated provision is included in Recital 12 of Framework Decision 2002/584. ³⁰

This notwithstanding, the risk of surrender proceedings being used for political motives is not inexistent, ³¹ all the more so when double criminality is at stake (despite Recital 12 forbidding this misuse as well). Reference may be made here to the Belgian and German EAW cases concerning Mr. Puigdemont in relation to the criminal charges brought against him by the Spanish Judicial Authorities in the wake of the Catalan independence crisis. ³²

These few examples serve to highlight that double criminality is firmly linked to constitutional principles such as that of legality (nullum crimen, nulla poena sine lege) ³³ and its corollaries, especially the one of foreseeability of crimes, ³⁴ and also of offensiveness (nullum crimen, nulla poena sine iniuria). ³⁵

Following the decision in the KL case, the current outlook suggests the possibility of surrendering an individual for offences that have significantly different legal structures and much less severe penalties compared to those present in the executing Member State. This situation poses a serious problem, considering the potential consequences it may have on the constitutional principles just listed.

The European Arrest Warrant and the intertwined themes of double criminality and proportionality

The KL case brings to light another crucial aspect in the realm of cooperation in criminal matters, namely the issue of proportionality regarding the EAW, along with the stages at which its compliance with this principle is to be determined.

This issue was raised in relation to the legal concept of double criminality, which seems to be just one aspect among many where it may be applied. ³⁶ Therefore, it is beneficial to start by examining the ruling itself regarding this and later to observe its repercussions on the principle of proportionality of criminal offences and penalties in surrender proceedings. ³⁷

The CJEU has ruled that an EAW is not disproportionate if part of the conducts constituting a criminal offence in the issuing Member State are not criminalised in the executing Member State. Looking at the specifics of the KL case, it seems that the problem at hand was not solely the crime of devastation and looting itself, but also the “general part” of substantive criminal law, concerning the concepts of a single criminal offence consisting of multiple acts (reato complesso) ³⁸ and of the objective element of complicity (concorso di persone nel reato). ³⁹ Specifically, it may be inferred that the acts encompassed by the criminal offence of devastation and looting, as determined by the Court of Appeal of Genoa, did not have a direct equivalent in French criminal laws due to differences in provisions regarding actus reus and mens rea. Actually, some of these acts would have not been punishable in France because Mr. KL’s material collaboration in their commission had not been demonstrated to the required standard.

As a result, this inference strikes at the core of the notion of double criminality as it suggests that this condition applies not only to specific crimes but also to foundational general categories of criminal law. This implies that the principle of proportionality is inevitably called into question, as the conviction decision and the severity of the penalty imposed reflect the significantly differing legal rules and values of the two systems involved, which may not be reconciled easily.

Also, the justification that the CJEU provided to support the exclusion of Article 49(3) of the Charter of Fundamental Rights of the European Union is not fully convincing. In line with its previous case-law, it mainly stated that proportionality of criminal offences and penalties is a matter left to the responsibility of the issuing Member State. This explanation comes across as perhaps too brief in covering the possible situations that might arise in practice. For example, if only a few or irrelevant set of the facts that constitute the crime for which the EAW is sent from the issuing Member State are punished as such in the executing Member State, a broad interpretation of double criminality like the one in the KL case would bring about a surrendering mechanism that would mostly concern non-criminal conducts, which runs counter to the inherent logic of Framework Decision 2002/584/JHA. This expansion of the validity of the criminal laws of the issuing Member State into the executing one occurs in the absence of proper EU consensus. It implies a form of “temporary bilateral harmonisation” between the two Member States involved, which creates significant uncertainty, especially at the expense of the individual’s liberty.

Ex post evaluation and innovative grounds for refusal of the European Arrest Warrant in view of the principle of proportionality of criminal offences and penalties: Is there room for more?

The decision of the CJEU in the case against Mr. KL seems to contemplate the double criminality principle as a mere obstacle both to EU integration and the fight against criminality. This perspective undermines the implications for legislative choices and the fundamental rights of persons involved in EAW proceedings.

On account of this, the reasoning of the Court in the KL case and the one in its ruling in case E.D.L., C-699/21 ⁴¹ offer the opportunity to look at the possible future repercussions for the ex post evaluation of an EAW and its grounds of refusal.

In the KL case, the CJEU justified its decision not to demand a comprehensive examination of the compatibility between the criminal offences of the Member States also by mentioning that «minimal harmonisation in the field of criminal law at EU level» plays a significant role in assessing the effectiveness of Framework Decision 2002/584/JHA. From this, it follows that if a particular crime has undergone harmonisation the said assertion may be reconsidered. Actually, in such situations, a more thorough evaluation of the legal elements of the criminal offence in question should be warranted. This implies that harmonisation efforts may raise the level of scrutiny necessary to ensure the double criminality requirement is met.

For instance, this approach may be relied upon for monitoring PIF crimes, which are aimed at protecting the financial interests of the European Union (differing from fraud, which falls under the category of criminal offences explicitly exempted from the double criminality check according to Article 2(2) of Framework Decision 2002/584). As a result, harmonisation achievements in this specific area (namely, the PIF Convention and the PIF Directive) ⁴² implicate a more comprehensive study of the description of PIF crimes to verify their compatibility with the double criminality condition.

In addition, the E.D.L. case introduces new possibilities regarding the grounds for refusal and the assessment of proportionality. While the KL case marked a decrease in the level of ascertainment of double criminality compared to the Grundza case (as mentioned earlier), the ruling in the E.D.L. case may offer the opportunity to reestablish the relevance of the double criminality principle. Namely, in it the Court stated that it is possible not just to postpone an EAW (as provided under Article 23(4) of Framework Decision 2002/584), but also to reject its execution, without following the two-steps process outlined in joined cases Aranyosi and Căldăraru, C-404/15 and C-659/15 PPU ⁴³ if it is found that there is the «real risk of a significant reduction in his or her life expectancy or of a rapid, significant and irreversible deterioration in his or her state of health […] that [...] cannot be ruled out within a reasonable period of time». ⁴⁴ This seminal decision was based upon the fundamental rights infringement clause under Article 1(3) of Framework Decision 2002/584.

Consequently, it may be argued that the interpretation shared in the KL case stating that «executing judicial authorities may therefore, in principle, refuse to execute a European arrest warrant only on the grounds for non-execution exhaustively listed by Framework Decision 2002/584» ⁴⁵ is not as overarching as before. Drawing from this, the proportionality of criminal offences and penalties under Article 49(3) of the Charter of Fundamental Rights of the European Union may have a more prominent part. Just as the E.D.L. case established a de facto new ground for refusal, indirectly derived from the combined reading of Articles 23(4) and 1(3) of Framework Decision 2002/584, a similar argument could be made regarding the principle of proportionality.

In fact, using the fundamental rights clause under Article 1(3) of Framework Decision 2002/584 as a tool to assess proportionality of criminal offences and penalties (for instance, in terms of reviewing the gravity of conducts and the level of penalty) could be a means of properly evaluating Article 49(3) of the Charter in protecting the individual subjected to the surrender proceedings. This would involve establishing a “grossly disproportionate” test for penalties in relation to the fundamental rights of the person involved. ⁴⁶

It would have been intriguing to observe the result in the KL case if this test had been carried out. In that situation, a 10-year sentence was handed down in the issuing Member State for acts that, in the executing Member State, were partly covered by much less severe offences and partly not even deemed criminal.

Finally, this underscores the necessity to promote further approximation not just of criminal offences but also of penalties in the European Union by means of the EU legislative procedure. ⁴⁷

The concept of double criminality, revolving around the constituent elements and description of crimes, permits only a limited examination. Both the abstract and concrete aspects of penalties, encompassing their type and duration, are integral parts of criminal offences. The EAW already addresses this, particularly under Article 2(1) of Framework Decision 2002/584, which sets out criteria such as those of a custodial sentence or a detention order for a maximum period of at least 12 months and, where a sentence has been passed or a detention order has been made, of a sentence of at least four months. It is vital to reevaluate this standard by factoring in the principle of proportionality of penalties after the arrest of the person involved the EAW proceedings. Currently, the duty to observe proportionality is limited to the issuing Member State, which excludes the opportunity to appraise the execution of a conviction decision based on the supervening circumstances of the case. This limitation hinders the comparison between the obligation to execute sentences and mutual trust within the EU and the taking into account of the passage of time and the re-educational aim of penalties, which the court of the executing Member State is best placed to assess accurately.

Concluding remarks

In conclusion, while the CJEU’s approach in the KL case may be subject to criticism, the double criminality principle remains a central aspect of the EAW. Still, it is possible to foresee positive theoretical and practical ramifications, especially from its decision in the E.D.L. case. The hope is that the CJEU will act as a human rights court even if this occurs at the expense of further integration in the area of cooperation in criminal matters. For instance, introducing a quantity- and quality- based restriction on surrendering requests concerning acts constituting a criminal offence that do not have a direct equivalent in the executing Member States criminal laws would be a positive development. Ultimately, what is advocated in this paper is the establishment of a “grossly disproportionate” penalties refusal ground for the EAW. Such a move would enhance the protection of individual rights, prevent the negative consequences of surrender proceedings on persons’ well-being, strengthen trust among Member States, and allow for the effective allocation of judicial resources towards combating serious crime. Lastly, it would enable the utilisation of other cooperation instruments better suited for specific purposes.