In his opinion delivered on Tuesday, 26 November, (case C-717/18), Advocate General Michal Bobek stated that, when assessing the maximum sentence length imposed by the Framework Decision on the European arrest warrant (Framework Decision 2002/584) in order to surrender a requested person, without verification by the executing State of the validity of the offence within its own national legislation (criterion of double criminality), the relevant law of the issuing Member State is the one that is actually applicable to the case.
In 2017, the Spanish National High Court sentenced the rapper Valtònyc to two years’ imprisonment for the glorification of terrorism. This was the maximum sentence available at the time of the offence, before legislative reform increased this maximum length to three years. Valtònyc left Spain for Belgium and a European arrest warrant was issued against him, with a view to carrying out the sentence that had been passed.
The warrant indicates that the offence of glorifying terrorism falls within the category of acts of terrorism, one of the 32 offences listed in the Framework Decision which do not give rise to verification of double criminality, if they are punishable in the issuing Member State by a custodial sentence of a maximum period of at least three years.
The Court of Appeal in Ghent asked the EU Court of Justice whether the requirement for a maximum sentence of at least three years is met. Which prison sentence should be taken into account: the one applicable to the case at hand (two years) or the one applicable at the time the arrest warrant was issued?
In his opinion, Bobek proposed that the Court answer that the Framework Decision on the European arrest warrant refers to the criminal legislation applicable in the issuing Member State to the case involving the requested person.
The Advocate General pointed out that the case before the Court was not concerned with the merits of the sentencing decision whose execution is sought, or with whether the offence of glorification of terrorism automatically qualifies as terrorism for inclusion in the list of 32 offences.
To consult the opinion, go to: http://bit.ly/2QSback (Original version in French by Mathieu Bion)