Sitting as a Grand Chamber, the European Court of Justice (ECJ) ruled on May 12, 2021, that a provisional arrest pursuant to a request from a non-European nation only violates European law on ne bis in idem grounds if there has been a finding that the notice is based on the same acts as those involved in a criminal matter that was already disposed of by an EU state.
As the highest court in the EU, the ECJ’s decisions are binding on matters of EU law for all the member nations. The ECJ has no jurisdiction over matters involving the interpretation of the law of any of the individual nations, but the courts of any member state can submit questions to the ECJ about how to apply EU law in their own decisions. In this case, a court in Germany referred several issues to the ECJ regarding the circumstances surrounding a “red notice,” an instruction from Interpol for all 194 of its member states to attempt to locate and arrest an international fugitive.
The red notice at issue here was requested by the United States against a German national—identified in the case by the initials “WS”—for whom a US warrant for corruption was outstanding. In the case that appeared before the German court, WS argued that compliance with the US warrant ran afoul of the ne bis in idem principle of EU law, a rough analogue to the common law prohibition against double jeopardy that makes multiple prosecutions for the same offense unlawful. WS asserted that since the US warrant concerned the same criminal acts as a German case against him that was halted in accordance with national law after he paid a fine, the German authorities should be required to intercede with Interpol to cause the organization to withdraw his red notice in order to preserve his right to freedom of movement within the EU.
The ECJ, however, found that a provisional arrest of WS by an EU nation would actually be lawful. The Court agreed that the ne bis in idem principle could prohibit such an arrest, even on the basis of a warrant from a nation outside the EU, but only if it was clearly established that the new case did, in fact, proceed from the same actions as the original one. In WS’s case, the Court found that was not established, and so it held that a provisional arrest for the specific purpose of determining whether such double jeopardy was implicated would be appropriate.
For cases where it is actually established that the subsequent prosecution came from the same conduct as the first, however, a red notice arrest by any country in the EU would be illegal. It is important to note that this does not apply to formal extradition procedures, which are governed by separate treaties.
Cases involving prosecutions in multiple national jurisdictions are highly complex and require knowledgeable representation. If you or someone you know is dealing with a case involving EU or other international criminal law, contact our team of experienced trial attorneys to find out more.
