Case 1

Arrest warrant from Spain to Belgium. Her Council refused the execution for the arrest warrant.
Rebellion not considered a crime in the same terms under Belgian law.

Q1: Follow these steps:

1. Request falling within purpose?
- Execution sentence, pre-trial order or prosecution
2. Request falling within the scope of the instruments?
- Possible custodial order order or sentence for at least 12 months, passed order or sentence of
at least 4 months. (Act punishable by more than 12 months in Spain)
3. Request coming from competent authority according to the Framework Decision (!)?
-Article 6 of the Framework Decision.
-Double-layer: there has to be an internal warrant before there can be a European warrant.
4. Double criminality?
-Is the crime in or outside of the list of article 2? (Double criminality – is het strafbaar in
beide landen? - lifted for the 32 crimes in the list) (Probably not on the list, so you’ll have to do the
check on double criminality. Belgium does not have an equivalent crime for rebellion, but it does for
misuse. This is not sufficient to check double criminality, you’ll also need to check if they are both
criminal sanctions. See in this regard art. 2.4 Framework Decision. We have to look at the
“conducts” that are charged, we have to look if these conducts are punishable in both countries.You
do so by asking yourself the question “What has person done?)
5. Refusal grounds?
-Mandatory: Article 3
-Optional grounds: Article 4
6. Conditional surrender?
-Life sentence (article 5)
-Resident/staying/national (article 5)
7. Reasons for postponement?
-Serious humanitarian reasons (life, health)
8. Others?
-E.g. immunity (article 17)

Ondanks geen volledige double criminality, kan het EAW gewoon uitgevoerd worden (ECJ K.L.)

Framework or convention applicable? -> Art. 31 Framework decision. The system of extradition has
been replaced by the Framework Decision in the relation of European Union Memberstates, if not
members, than the EU-convention on extradition is still the applicable source.

List of EAW breach of legality?

-Yes, because no clear definitions?
-No, because the list is to be defined in domestic law -> ECJ Advokaten ??

ECJ Aranyosi: Real (evidential) risk of breach of fundamental human rights (ECHR), than the
executing authority is bound to recognise this and is obligated to request further information under art.
15(2) FD. Not only possible for art. 3 ECHR, but for all ECHR articles (L.M.)

Proportionaliteit is niet belangrijk bij double criminality! Het staat niet in de ground refusals en het is
lastig te definiëren, waardoor het geen refusal ground is.

Extradition is not a criminal procedure, and legaliteit geldt alleen in criminal proceedings
(wanneer er inhoudelijk wordt geoordeeld)