Recital 16; see also the Com m ission’s view in the explanatory m em orandum on the
406
proposal, para. 105; cf. Kotzurek, ZIS 2006, p. 127.
The sam e result is found in ECJ joint cases C-187/01, C-385/01 (Gözütok/Brügge), based
407
on the im plications of m utual trust.
See Hamilton, Mutual assistance in crim inal m atters, p. 65.
408
W hether the “verification” has any substantive m eaning is still under debate, cf. e.g.
409
SatzgerIZimmermann, From Traditional Models of Judicial Assistance to the Principle of Mutual Recognition, p. 354.
Art. 14(1) EEW (search and seizure) / Art. 10(1a) EIO (any coercive m easure).
410
This reverses the functioning of the m echanism in, for exam ple, the fram ework decision on
411
the European Arrest W arrant, where, as a general rule, dual crim inality m ay still be required and the list of offences is the exception, cf. Art. 2(4), 4(1).
Art. 14(2) EEW / Art. 10(1b) and Annex EIO.
412
principles of traditional judicial cooperation, has long been seen as a chief obstacle to full effectivity of the principle of mutual recognition. The Council regards it as an impediment and therefore tries to limit its scope.406 Indeed, it would seem inconsistent that in a common judicial space, built on mutual trust, a state could not prosecute an offence committed on its territory effectively only because the relevant evidence is in – or even has been purposely brought to – another Member State that has other values and thus other substantive criminal laws. It is the very essence of mutual recognition (and trust) that one recognises penal laws that are different, not only those that are equal.407
A limitation of this requirement was therefore already laid down in Art. 51 of the Schengen Convention.408 The framework decision on the European Arrest Warrant took this idea further, although an abolition of the principle, as had been the original plan of the Commission, proved unachievable. The legislation introduced the well- known and very controversial method of listing certain types of offences for which verification409 of dual criminality is not required.
A similar, but more far-reaching approach can be found in the legislation on evidence-gathering. No dual criminality is required where no coercive measures are necessary410 (i.e.: regularly no dual criminality!411) or, if these should be necessary, if the offence falls within the category of the offences listed.412 The list proves to be an amended version of the list of the framework decision on the European Arrest Warrant.
Braum, 125 GA (2005), p. 694; Gazeas, ZRP 2005, p. 21; Schünemann, ZRP 2003, p. 187;
413
id, ZRP 2003, p. 407.
See for this question Rohlff, Der Europäische Haftbefehl, p. 83ss; for an analysis of other
414
possible functions of the principle cf. Asp / von Hirsch / Frände, ZIS 2006, p. 512ss.
To this connection cf. Klip, 117 ZStW (2005), p. 901ss.; Deiters, ZRP 2003, p. 361;
415
disagreeing: Flore, Reconnaissance m utuelle, p. 74.
This idea of partially abolishing the requirement of dual criminality is criticized for the same reasons as were brought forward concerning the Arrest Warrant. While this approach might serve the aims of mutual recognition, it also causes serious problems in the relation of the executing state to the persons affected. A state may be forced to participate in the prosecution of an act that it considers as legal, or even as the exercise of a fundamental right. Some regard this therefore as a system of maximum punitivity,413 meaning that the legal order which has the strictest penal laws in a specific case will prevail over all the others.
In my view, the true problem is that mutual recognition would then only mean the recognition of the penalization of a certain behaviour and never the recognition of the decision not to make something punishable. But criminal law is always a fragmentary approach to setting social norms, and by punishing one special kind of behaviour, the legislator implicitly declares legal everything else. If we take the idea of mutual recognition seriously, we should at least consider not only to recognise punishability, but also to recognise impunity.
The problem of an accumulation of punishable behaviour is often answered by a simple reference to the historical implications of dual criminality which did not initially intend to protect individuals,414 but was rather aimed at protecting state sovereignty and complementing the principle of reciprocity. But this, certainly, cannot be the only answer.
The important point is that it is not the abolition of dual criminality that makes the strictest law prevail, but rather the assumption of extraterritorial jurisdiction.415 While it seems understandable that a state should be able to effectively prosecute an offence that was committed on its territory even if some evidence should be within a jurisdiction that judges differently, in cases of extraterritorial jurisdiction this appears
Cf. Spencer, An Academ ic Critique, p. 32, with typical exam ples.
416
See also Deiters, ZRP 2003, p. 361.
417
See Art. 13 (1) lit. f (I) EEW / Art. 10(1f) EIO (differently).
418
The fact that Germ any had not m ade use of this was even one of the reasons that the
419
im plem enting act was declared void, cf. decision of the Germ an Constitutional Court of 18 July 2005 – 2 BvR 2236/04, para. 94.
Klip, 117 ZStW (2005), 901; Fuchs, Regulation of Jurisdiction, p. 369.
420
Cf. Deiters, ZIS 2006, p. 477ss.
421
very dubitable.416 For the first case, take the example of a French national who commits an illegal act of euthanasia in France. The Netherlands would have to assist in the evidence-gathering even if the same act had been legal in the Netherlands. This might be justified with the idea of mutually recognising the French decision of punishing euthanasia. But in the second case, since France claims extraterritorial jurisdiction in euthanasia cases regarding their own nationals, the legislation on evidence-gathering would impose the same obligation to assist if the act had been committed in the Netherlands. This would then place the decision to punish above the decision not to punish – throughout the whole of the EU417. The Council realized this problem and introduced grounds for refusal in cases where the act is seen as having been committed in the executing state.418
This rule (that is also found in the framework decision on the Arrest Warrant419), however, still favours the decision to punish in certain cases of conflicting jurisdictions. Let us continue the example: If a French national had committed a lawful euthanasia in the Netherlands, Germany would have to assist the French prosecutors, because the German law on international crimes would also assume jurisdiction, had the offender been a German national. Thereby, the French decision to punish gets more weight internationally than the Dutch decision not to punish, and for an act committed on Dutch territory. It is clear from this that a real solution can only be based on a uniform allocation of jurisdiction within the EU.420 That would at the same time determine the applicable substantive criminal law because of the traditional – though not necessary421 – link between jurisdiction and applicable law. Such a uniform allocation of jurisdiction would have the further advantage of solving problems in other areas of European criminal justice in a consistent way, e.g. of how
Cf. Vander Beken/Vermeulen/Lagodny, NStZ 2002, p. 624 ss.
422
Art. 14 (2) EEW / see also Art. 10(1b) EIO; G erm any, as it favoured to have definitions for
423
the offences (cf. eg. the resolution of the Bundestag, BT-Drs. 15/3831 p. 4 f.), has now the possibility to opt out concerning certain types, cf. Art. 23(4) EEW .
Fuchs, Regulation of Jurisdiction, p. 362ss.
424
Staubach, Die Anwendung ausländischen Strafrechts, passim .
425
to secure best the transnational ne bis in idem.422
As long as this is not achieved, the requirement of dual criminality must still be taken seriously into account. For the European Evidence Warrant, the Council already shortened the list of offences and set down a maximum penalty of at least three years as a condition.423
The already mentioned „Programme for European Criminal Justice“ has another approach to dual criminality. Because it develops the idea of transnational procedural unity and seeks the application of a single law to a case, dual criminality is not necessary for any measure. This is partly atoned for by the fact that only a single state is competent for the case. The competent state is to be determined at the very beginning of the proceedings according to a complex procedure including Eurojust and taking into account every party’s interests. But this mode of determining jurisdiction is very open in its outcome. Even if it helps to avoid competing jurisdictions, it cannot give the affected individual the legal certainty as to the applicable substantive criminal law that is desirable.
Still another approach is found by Fuchs424, who believes the link between the jurisdiction and the applicable law to be the real cause of the problem and seems to favour the application of the substantive criminal law of the offender’s home state. Although the application of foreign criminal law cannot be rejected as a matter of principle, this proposal seems to me so wholly incompatible with the primary purpose of criminal law to regulate the conduct of the people in a certain territory that it does not really make sense, even if this doctrine was predominant some centuries ago.425
W illiams, ERA-docum ent, p. 23; idem , in: Vervaele (ed.), European Evidence W arrant, p.
426
74; Kotzurek, ZIS 2006, p. 137; to this understanding of trust see also above in chapter 4. Art. 7 lit. a EEW / Art. 5a(1a) EIO.
427
Kotzurek, ZIS 2006, p. 138, disagrees with regard to the Com m ission’s Proposal
428
(COM/2003/688fin.), but this point is now clarified by the addition of a subparagraph that states that the com pliance with these requirem ents shall only be assessed by the issuing state, see Art. 7 EEW . Instead, Art. 5a(2) EIO drops the word „only“.
Art. 7 lit. b EEW / Art. 5a(1b) EIO.
429
Gleß, in: Sieber et al. (eds.), Europäisches Strafrecht, § 38 para. 25.
430
Art. 6(c) (COM/2003/688fin.).
431
Kotzurek, ZIS 2006, p. 128.
432