The evolution of European Union criminal law (1957-2012)

about standards being similar across the EU. While an individual can have recourse to
the European Court of Human Rights to assert rights rising from the European
Convention of Human Rights, this can only be done after an alleged breach has
occurred and all domestic legal avenues have been exhausted. This has not proved to be
an effective means of ensuring that signatories comply with the Convention’s
standards.” 736
The same concerns are also voiced specifically vis-à-vis defence rights laid down in
Article 11 of the Framework Decision. These leave out a significant part of the surrender
procedure, such as the right to legal representation in the executing State and detention
conditions, for example. Again, the Commission came to voice this in 2011:
“While welcoming the fact that the EAW is a successful mutual recognition instrument in
practice, the Commission is also aware of the EAW’s remaining imperfections, notably
when it comes to its implementation at national level. The Commission has received
representations from European and national parliamentaries, defence lawyers, citizens
and civil society groups highlighting a number of problems with the operation of the
EAW: no entitlement to legal representation in the issuing state during the surrender
proceedings in the executing state; detention conditions in some Member States
combined with sometimes lengthy pre-trial detention for surrendered persons(…).” 737
Finally, the partial abolition of dual criminality 738 - the principle which ensures that no
one shall be punished for acts not deemed as criminal where and when they are
committed (nullum crimen sine lege) - also weakened the position of the individuals. 739
The principle of dual criminality relates closely to the principle of legal certainty,
according to which the law must be clear and precise, its legal implications foreseeable.
The abolition of dual criminality also balanced the relationship between States
themselves. The principle holds that States can refuse extradition in cases where the
conduct at stake is not deemed as criminal by their own laws. This relies on the idea that
736 European Commission, Report from the Commission to the European Parliament and the
Council on the implementation since 2007 of the Council Framework Decision of 13 June 2002
on the European arrest warrant and the surrender procedures between the Member States,
COM(2011) 175 final, Brussels, 11.4.2011, 6.
737 European Commission Report, ibid. 6. For more details on detention see section below in this
chapter.
738 Also known as principle of double criminality.
739 N. Keijzer, “The Double Criminality Requirement” in Judge R. Blekxtoon and W. van
Ballegooij, Handbook on the European Arrest Warrant (The Hague/ The Netherlands: T.M.C.
Asser Press, 2005) 137, 137-138.
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