Difference in legal interests and double criminality under the EAW
Court of Justice of the European Union, judgement of the 14th of July 2022, Procureur général près la cour d’appel d’Angers, C‑168/21, KL
The erosion of the double criminality principle in the field of judicial cooperation in criminal matters by the Court of Justice of the European Union continues
The Court of Justice of the European Union, with the judgement issued on the 14th of July 2022, in the case C-168/21 (KL), stated that the condition of double criminality is met where the legal interest protected under the offence in the issuing Member State is different from that in the executing Member State.
The facts of the case and the questions referred for preliminary ruling
The case concerned the request for the execution in France of a European arrest warrant (EAW) issued by Italy in 2016 against Mr. KL for the enforcement of a custodial sentence of 12 years and 6 months for, among four crimes, the one of devastation and looting committed in Genoa (Italy) during the demonstrations against the G8 Summit held there in 2001.
The decision of the Court of Appeal of Genoa, upon which the EAW was founded, mentioned that Mr. KL was charged, under the classification of ‘devastation and looting’, with the commission of seven acts, punishable as a single offence. The Court of Appeal of Angers (France) decided not to surrender Mr. KL for the custodial sentence for devastation and looting and, at the same time, asked the Italian judicial authorities whether they wished that the one for the remaining crimes was served in France. Against this ruling the Public Prosecutor at the Court of Appeal of Angers and Mr. KL filed an appeal before the French Court of Cassation, which, in turn, referred, among three questions, the following one to the Court of Justice. Whether the condition of double criminality is met in case the crime of devastation and looting upon which the EAW from the issuing Member State is based includes the constituent element of the breach of public peace where the equivalent offence in the executing Member State does not.
The Court of Justice addressed the question by relying on its previous case-law and by adopting a systematic and teleological interpretation of Framework Decision 2002/584/JHA (Framework Decision).
In the first place, it reminded that the assessment of the double criminality principle under article 2(4) of the Framework Decision consists in verifying that the EAW refers to an offence under the law of the executing Member State “whatever the constituent elements or however it is described” and that the grounds for optional refusal in this regard affect the ascertainment that the “act […] does not constitute an offence under the law of the executing Member State”. From this, it derived that the criminal provisions “do not need to be identical”. Namely, the definitions mentioned above “do not require that there be an exact match between the constituent elements […] or between the name given to or the classification of the offences”. The said check ultimately revolves around controlling that “the factual elements underlying the offence […] would also, per se, constitute an offence”.
To reinforce this understanding, the Court of Justice focused, in general, on mutual recognition, and, in particular, on the EAW.
More specifically, it mentioned that the former is the “cornerstone” of judicial cooperation in criminal matters and that the refusal of the latter is to be deemed exceptional and the corresponding grounds must be interpreted strictly so as to limit instances of non-execution, as this would otherwise frustrate the objectives of facilitating and accelerating surrenders. Requiring an “exact match” between constituent elements and legal interests would mean that the “effectiveness of the surrender procedure would be undermined”. This is true also because finding such correspondence is unlikely given the “minimal harmonisation in the field of criminal law at EU level”. Finally, this would also hamper the “objective of combating impunity” of the Framework Decision. Therefore, the Court of Justice ruled that the difference in the legal interests protected in the offences in the issuing Member State and the executing Member State is irrelevant insofar as the condition of double criminality is concerned.
The erosion of the double criminality principle under the EAW
From a broader perspective, the ruling of the Court of Justice in the KL case follows and develops its case-law, gradually but significantly lowering the standard of the double criminality check in judicial cooperation in criminal matters.
Starting from the leading case Grundza, in which a degree of similarity between the legal interests of the offences seemed to be still required (see judgement of the 11th of January 2017, Grundza, C-289/15, par. 49), the Court reoriented the control on the matching between criminal provisions preferring a lesser assessment, where attention is paid to the theoretical possibility to prosecute and sentence the individual rather than to the concrete analysis of the identity and scope of application of the offences at hand. In so doing, the Court took a step forward as it deprived of any role one of the pivotal elements of a criminal provision, that is to say the legal interest it preserves.
The proceedings in the KL case are almost self-explanatory in this regard. In fact, it is clear from the wording of the two offences (i.e. the Italian and the French one) that they serve different purposes. The former is aimed at the defence of public order while the latter at that of private property. This divergency should not be underplayed, as it lies at the core of the choice of the national lawmaker.
Most importantly, from reading its wording, the reasoning of the said judgment is totally devoted to achieving the full effectiveness of the surrendering mechanism, as is often the case for the Court of Justice in this field since it brings about stronger integration. At a closer look though, such approach exposes a disregard for the rationale behind the resemblance between the constituent elements of criminal provisions in the respective statutes of the Member States. In particular, what emerges is that the fear of cross-border impunity undercuts the principle of legality and its corollaries.
In conclusion, the decision in the KL case is an example of the trend of favouring the effet utile of mutual recognition instruments in the European Union at the cost of the safeguard of fundamental rights in criminal law.