This BBC analyst is reading and applying wrong law.
He’s probably reading the EU Extradition Treaty instead of reading The EU Framework Decision of the European Arrest Warrant and the Surrender Procedure between Member States of 2002. The EU Extradition Treaty is/was among some European countries and does not originate from the Lisbon Treaty, therefore it does not enjoy ” primacy” under the 2007 Treaty of Lisbon. Of course, the EU Extradition Treaty is binding to the States that signed it. However, under Declaration 17 of the Treaty of Lisbon, the EU Extradition Treaty does not prevail in KK’s case because the UK is executing a European Arrest Warrant under the Treaty of Lisbon; The EU framework …of the European Arrest Warrants and the surrender procedure is Supreme under ” primacy”!!
Dual criminality is not required under the EU framework …of the European Arrest warrants … of 2002. The EU Framework actually abolished extradition procedure among EU member States _( Refer to Article 1(1) and (5) of the Framework); it’s surrender and the executing country is only providing practical and administrative assistance, Article 1 (9)
Article 1 (10), (12) and (13) of the framework provides the only three exceptions where implementation of the arrest warrants may be suspended.
Assuming, arguendo, that dual criminality was a requirement under the European Arrest Warrant and the surrender procedure law ” The Framework” of 2002, the BBC analyst should have noted that Article 2 (2) of The Framework which enumerates the crimes covered, provides that ” all crimes within the jurisdiction of the ICC are covered”. Assuming KK was charged with war crimes only, as the BBC analyst appears to argue, since war crimes fall under the jurisdiction of the ICC, then KK should have been surrendered to Spain since the Framework , Article 2 includes all crimes that fall under ICC jurisdiction among those that trigger transfer.
Article 3 of the Framework provides for mandatory non-execution of European Arrest Warrants – 3(1) where the suspect was granted amnesty for the same crimes, 3(2) where the accused was tried for the same crimes and the trial came to its natural end and 3(3) where one cannot be held criminally liable because of age, in the executing country. There are a number of grounds for optional non-execution of European Union arrest warrants under Article 4.
Dual criminality is not one of the applicable principles in KK’s case. Therefore, the UK court could not have relied on this principle to set KK free. If this was the court’s legal reasoning, I bet this case will go straight to the Court of Justice of the European Union for a long legal battle.
Dr Charles Kambanda