The Principle of Dual Criminality and the European Arrest Warrant

Posted: 10 Jan 2009 Last revised: 12 Dec 2012

See all articles by Elies van Sliedregt

Elies van Sliedregt

Centre for Criminal Justice Studies, School of Law; University of Leeds, School of Law

Date Written: December 2, 2008

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.

Keywords: dual criminality, extradition, European Arrest Warrant, surrender, Framework Decision, legality, human rights

Suggested Citation

Sliedregt, Elies van, The Principle of Dual Criminality and the European Arrest Warrant (December 2, 2008). Available at SSRN: https://ssrn.com/abstract=1310194 or http://dx.doi.org/10.2139/ssrn.1310194

Elies van Sliedregt (Contact Author)

Centre for Criminal Justice Studies, School of Law ( email )

Leeds LS2 9JT
United Kingdom

University of Leeds, School of Law ( email )

Leeds, LS2 9JT
United Kingdom

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