CJEU Advocate General Bobek publishes opinion on the law applicable to verification of double criminality in EAW cases

A question was referred to the CJEU from the Court of Appeal of Belgium in respect of an EAW. In 2018, an EAW was issued by the National High Court of Spain in respect of a rapper who had been convicted in 2012 and 2013 of the offence of glorification of terrorism and the humiliation of the victims of terrorism. He subsequently left Spain for Belgium, having been sentenced to two years’ imprisonment, the maximum sentence available at the time for such offending.

In issuing the EAW, the Spanish court indicated that the offending in question fell within the bracket of ‘terrorism’, which pursuant to the Framework Decision, bears no requirement of verification of double criminality if it is punishable by at least three years’ imprisonment in the Requesting State. The maximum sentence for the Spanish offences was increased in 2015 from two to three years and the question that the Belgian Court sought to resolve was, for the purpose of assessing the maximum threshold period of at least three years imposed in order to dispense with verification of double criminality, whether the applicable legislation is that which is applicable to the case at hand (that is to say, the law in force at the time of the commission of the offence) or that which is in force at the time of the issue of the EAW

In response, AG Bobek, acknowledging that the language of the Framework Decision is inconclusive on this point, proposed that the Court of Justice declare that the applicable law is the law in the Requesting State that is actually applicable to the case of the Requested Person, that is to say, the law at the time of commission of the offence. He stated that there are compelling reasons, both logical and systemic in nature, which militate in favour of such an interpretation. Interpreting the Framework Decision by reference to the law actually applicable to the facts of the case offers a simple, clear and foreseeable legal framework.

AG Bobek went on to state that the case before the Court of Justice is concerned with the narrow issue of which law is applicable for dispensing with the verification of double criminality. The Court is not being asked to consider the merits of the sentence imposed or whether the offence of the glorification of terrorism and humiliation of the victims of terrorism can automatically be subsumed under the heading of ‘terrorism’.