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The case of the extradiction of the Spanish politician Carles Puigedemont made me wonder whether the justification of the partial non-execution of the European Arrest Warrant (EAW), decided by the Oberlandesgericht Schleswig-Holstein, is justified.

The EAW names several grounds for optional non-execution. However, in the case named above the Court of Schleswig-Holstein justifies its decision by saying that the level of violence applied by the person subject to the EAW was not strong enough to be considered as "High Treason", referring to German jurisdiction. However, the only ground for non-execution that references the jurisdiction of the executing member state is found in Point (3) of Article 4 EAW, which doesn't seem to be applicable in this case.

Is the justification of the German court based on another principle that is not stated in the EAW, requiring to take into account the case law of the executing member state? Or could it be justified via another one of the seven paragraphs of Article 4 EAW?

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You’re looking at the wrong part. The relevant section is Article 2, which sets out offenses that are extraditable using the EAW mechanism. Article 2 has a list of offenses which are extraditable regardless of dual criminality if the issuing state punishes them with a maximum of at least 3 years in prison, but for all other offenses the executing state is entitled to require dual criminality before extraditing (per Article 2(4)). Article 4(1) reiterates this point. Treason is not a listed offense under Article 2, so Article 2(4) and Article 4(1) allow Germany to require dual criminality to extradite. If the underlying conduct would not constitute a crime under German law (which the German court ruled it wouldn’t), Germany can refuse extradition.

  • Your Reference to Article 2 is a valid point. However I don't see your statement regarding the "underlying conduct" reflected in the relvant EAW paragraphs. The EAW clearly refers to the underlying acts for wich the arrest warrant has been issued. The "underlying conduct" as you put it is not mentioned. – Martin Heimsoth Apr 9 '18 at 21:05
  • Actually I think this misconception is at the center of the current disagreement between both courts: The german court focusses on the conduct itself, while the Spanish court expected a pure focus on the underlying acts, as is stated in the EAW. – Martin Heimsoth Apr 9 '18 at 21:06
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    @MartinHeimsoth what is the difference between "underlying conduct" and an "underlying act"? I suspect that cpast is using the former phrase as synonymous with the latter. – phoog Apr 9 '18 at 21:30
  • @MartinHeimsoth Phoog is correct. I presume "underlying act" means "the actual things the accused allegedly did that make him subject to criminal charges." "Underlying conduct" is another term for the same thing. – cpast Apr 9 '18 at 23:12
  • OK. I assumed that in this context act refers to "legal statute". How do you know that in this case "act" means "the process of doing something"? It's unfortunate of the legislators to use a polysemic word in this context, for which both meanings make sense. – Martin Heimsoth Apr 10 '18 at 3:57

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