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

The national judiciary and the EAW
These grounds for refusal and conditions that can be asked upon surrender have been
often criticised by the national judiciary as being insufficient to compensate for the deep
changes in the extradition regimes – from the abolition of non extradition of nationals,
dual criminality, possibility of assessment by the executing State, etc. These changes
caused difficulties often at national level and led readjustments of domestic legal orders.
These were made via judicial reactions at national level – often from national
constitutional or supreme courts – or via the laws implementing the Framework
Decision into domestic legal systems.
The Second Senate of the Federal Constitutional Court of Germany 774 dealt with a large
majority of these issues already in 2005 in an emblematic case involving Mamoun
Darkazanli, a German-Syrian national, suspected of links to the 11 September attacks, of
financing Al-Qaida and of connecting its members to Europe. He was sought in Spain
and in Germany for crimes committed between 1993 and 2001. In Spain nevertheless he
was also prosecuted for participation in a terrorist organisation (acts which were not
criminalised in Germany before August 2002). Upon the issue of a EAW against him by
Spain, Mr. Darkazanli challenged the EAW on several grounds, such as non respect of
the principle of dual criminality (given that membership of a criminal organisation was
not a crime in Germany at the date of the facts in relation to which the EAW against him
had been issued) and breach of his right to judicial review as the extradition decision
could not be challenged. The German Federal Constitutional Court found with Mr.
Darkazanli and annulled the law implementing the Framework Decision in the German
system. But in its reasoning, the Court took a wider approach to the matter than the one
proposed by the defendant. First and foremost the Court found the law implementing the
EAW in Germany did not adequately protect German citizens’ fundamental rights of
recourse to a Court as argued by the party but also of freedom from extradition. More
specifically, the Court attacked the implementing act as it did not implement the optional
grounds for refusal allowed by the Framework Decision (such as the territorial
exceptions - when the offences were committed fully or in part in German territory or
when committed outside the territory of issuing and executing States and German law
774 Judgment of the Second Senate of the Federal Constitutional Court of Germany on the
European Arrest Warrant, 18 July 2005, Zitierung: BVerfG, 2 BvR 2236/04 vom 18.7.2005,
Absatz-Nr. (1 - 203) available here http://www.bundesverfassungsgericht.de/en/press/bvg05-
064en.html.
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