Rechtzaak mogelijk invloed op Europees aanhoudingsbevel (en)

EUOBSEVER / BRUSSELS - The EU's highest court will this week rule on a Belgian case that could have EU-wide consequences for the European Arrest Warrant - one of the bloc's main tools for fighting terrorism and cross-border crimes.

The European Court of Justice (ECJ) will on Thursday (3 May) give a judgment on whether a key principle of the EU arrest warrant is compatible with European law on criminal proceedings.

The European Arrest Warrant (EAW), which came into force in January 2004 after an EU governments' decision in 2002, allows judges in EU states to call upon other member states' governments to extradite suspects, including their own nationals.

However, a Flemish association of lawyers - Advocaten voor de Wereld - challenged the Belgian law that put the arrest warrant in to force in Belgium on two accounts. The Belgian arbitration court then referred the case to the ECJ to rule on the legality of the EU arrest scheme.

The association questioned the legal basis of the law and whether the right legislative instrument had been chosen, arguing that the "dual criminality" waiver in the EAW is effectively discriminatory.

Dual criminality means that the act concerned must be a crime in both the country in which it occurred and the country in which the arrest takes place.

The EU warrant lists 32 serious offences to which the principle "dual criminality" does not apply.

Instead the principle of "mutual recognition" applies, meaning that a judge in member state A does not have to approve an accusation in member state B before extraditing its citizen to member state B.

These 32 specific offences include those involving terrorism, drugs, weapons, human organ trafficking and murder.

The organisation argues that the abolition of the dual criminality principle in the EAW is unlawful because a crime which is murder in member state B might "only" be manslaughter in member state A.

Manslaugter is not one of the 32 offences listed but the extradition would still be carried out in the name of murder because of the dual criminality waiver.

"If the European Court of Justice finds in favour of the arguments made by the NGO then this could have a dramatic effect on the legality of the Framework Decision itself, not just in Belgium," said Anand Doobay, lawyer and EAW expert at the UK law firm, Peters and Peters.

Opinion against the lawyers group

However, last September, the ECJ's advocate general in the case, Damaso Ruiz-Jarabo, defended the arrest warrant - the advocate general's opinion is followed by the main judgement of the court in most cases.

Mr Ruiz-Jarabo argued that the legal base and method of implementation was fully in line with EU law and that the abolition of "dual criminality" in the 32 specific offences "does not contravene the principle of legality in criminal proceedings or the principle of equality."

The case is the latest in a string of issues surrounding the European Arrest Warrant.

Directly after the terrorist attacks in New York and Washington in September 2001, the EU was spurred to finally reach agreement on the European warrant, a piece of legislation that had been languishing in the EU's legal pipelines for years.

However, several member states missed the 2004 deadline for implementation and some oithers - Germany, Poland and Cyprus - were further delayed after encountering legal problems when applying the warrant, as it contradicted national constitutions.

On top of this, each of the EU member states has a different legal system complicating attempts to make common rules across the bloc.

A legal technicality in Germany earlier this year resulted in a German court's refusal to extradite a war crimes suspect - a former SS officer - to Denmark where he was wanted for murder.