Dual criminality under review: on the Puigdemont case

• Autores: Marta Muñoz de Morales Romero
• Localización: EuCLR European Criminal Law Review, ISSN-e 2193-5505, ISSN 2191-7442, Vol. 8, Nº. 2, 2018, págs. 167-175
• Idioma: inglés
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• Resumen

  • The Puigdemont case is calling into question the surrender proceedings between Member States. The ex-President is requested to trial for the commission, amongst others, of a crime of rebellion. As this offence is not included in Article 2.2 of Framework Decision 2002/584/JHA, the executing judge may control the principle of dual criminality. The German court has pointed out that double criminality prevents the surrender for the crime of rebellion since the violence required by the German offence of high treason, which is similar to the Spanish crime of rebellion, must be capable of making the State capitulate to the pretensions of the rebels and that has not been the case in Spain. However, in Grundza, the ECJ said that the condition of double criminality is met provided that the executing judge ascertains that the factual elements by which the person is requested are subject to a criminal penalty under domestic law. Was there no other way of interpreting the German criminal offence of high treason or of considering the facts described in the EAW form as criminal offences? This paper explores, firstly, whether the German judge has exceeded his powers in analyzing the concurrence of the element “violence” under domestic law. Secondly, it focuses on other possibilities to make Mr. Puigdemont’s surrender successful.