Magistrate: If It’s Double Jeopardy in EU, It Is Outside Too

The entrance hall of Interpol’s headquarters in Lyon, France. (AP Photo/Laurent Cipriani, File)

(CN) — A European magistrate said Thursday that someone who’s been prosecuted in one European Union state should not face extradition to a nation outside the bloc for the same crimes.

Michal Bobek, an advocate general for the European Court of Justice, issued his legal opinion in a case involving a German man facing extradition to the United States on charges of corruption, money laundering and fraud even though he had paid fines in Germany in connection with the same charges.

Bobek’s legal opinion is not binding on the Luxembourg-based court, but serves as a legal analysis and guidance. Opinions by advocates general often indicate how the court will rule, but not always.

The German citizen was identified only by the initials W.S. and the court opinion did not discuss the details of the allegations against him. Instead, Bobek concentrated on what he said were novel legal questions concerning the principle of double jeopardy as it relates to Interpol red notices and extradition requests.

In 2012, Interpol issued a so-called red notice for the arrest of W.S. on behalf of the U.S. Red notices are issued before extradition hearings take place.

But German authorities had already investigated W.S. over the same allegations and ended criminal proceedings against him after he paid fines. The advisory opinion did not say how much he paid.

In 2013, Germany’s Federal Office of Criminal Police issued an addendum to the red notice stating that the principle of double jeopardy applied to the criminal case of W.S. German authorities also asked the U.S. to withdraw the red notice, something the U.S. refused to do initially.

In 2017, W.S. sued the Federal Office of Criminal Police in a German administrative court, demanding it remove the red notice against him. He argued he was at risk of being arrested elsewhere in Europe if he left Germany because he had been placed on wanted lists and could face prosecution for the same crimes he had been prosecuted for in Germany. Double jeopardy is a legal principle adopted in much of the world preventing someone from being tried for the same crime twice after a valid verdict has been rendered.

In June 2019, the administrative court in Wiesbaden, where W.S. filed his lawsuit, turned to the Court of Justice to settle the legal questions in his suit.

In September 2019, the U.S. withdrew the red notice for the arrest of W.S., but W.S. argued that he continued to face a threat of another red notice being issued against him.

Bobek found that the criminal proceedings in Germany should be seen as conclusive and therefore binding on other EU states and nations outside the EU. In other words, he said W.S. should be allowed to travel freely in the EU without fear of prosecution for the same crimes for which he paid a sum in Germany.

“A decision barring any further prosecution for the same act in one member state must have the same effects elsewhere within one and the same area of freedom, security and justice, in the same way that it would have within one and the same domestic legal system,” Bobek wrote.

He said the same principle applies to jurisdictions outside the EU seeking to prosecute someone who’s already been tried for the same crimes somewhere in the EU.

“One legal space means one legal space, internally as well as externally,” Bobek wrote. “A member state cannot arrest, temporarily detain or adopt any other measure limiting the freedom of movement of a person targeted by a red notice issued by Interpol if it has been authoritatively established that the trial of that person for the same acts has been finally disposed of in another member state.”

Several European nations – including the Netherlands, Belgium, Germany, Greece, the United Kingdom and the Czech Republic – objected to the Court of Justice taking up the case, arguing that W.S.’s situation should not be applied across the EU. They also argued that EU treaties, which include provisions against double jeopardy, cannot be seen as applying to jurisdictions outside the EU.

Bobek disagreed and said the Charter of Fundamental Rights of the European Union, an EU version of the U.S. Constitution, is clear in Article 50 that someone cannot be tried or punished twice in criminal proceedings for the same criminal offense.

“It would be a rather odd reading of Article 50 of the Charter if the importance and the reach of this fundamental right were to stop, for the member states’ authorities, at the external border of the union,” he wrote.

He said viewing it otherwise would “be dangerous for the effective protection of fundamental rights as it invites circumvention.”

Lawyers for European states objecting to W.S.’s case becoming a legal standard also pointed to an EU-U.S. agreement pertaining to extraditions. They argued that agreement does not regulate extraditions where double jeopardy may be at stake.

German state lawyers also argued that a broad reading of double jeopardy would impair relations with non-EU countries and make it more difficult, if not impossible, for them to comply with international agreements.

Government lawyers contended that each EU state should determine when to extradite someone or not. EU states have control over its criminal laws, though EU courts can overrule in some instances.

But Bobek said that while member states “indeed remain free to govern” criminal law and can enter into agreements with non-EU states, he said it “is legitimate only in so far as they do not agree to any commitment which is incompatible with the obligations stemming from EU law.”


Courthouse News reporter Cain Burdeau is based in the European Union. 

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