Being the subject of a European Arrest Warrant (EAW) can damage your fundamental rights. Since its introduction, the EAW has often been used in a controversial manner. Therefore, it is crucial to consult with expert extradition lawyers if you are the subject of an EAW. The EAW was introduced in 2004 in the aftermath of the 9/11 attacks in 2001. Its objective is to streamline the extradition process between European Union members and to allow member states to pursue prosecutions and custodial sentences across borders. The previous extradition systems were seen as too slow and awkward to combat threats such as terrorism and cross-border crime effectively. Once issued, the EAW applies to all EU Member States.

However, although intended as a means of combating serious criminal activity, the EAW is not immune from abuse by the Member States. It is a strong measure to implement and should be reserved for major offences such as those carrying custodial sentences. Those subject to EAWs can be deprived of numerous freedoms at the pre-trial stage. Due to its often draconian impact on the rights of the individual, it is introduced against, it advisable to consult with legal professionals on this matter.

A European Arrest Warrant can be issued by any of the EU Member States. It operates based on mutual recognition and is issued via direct contacts between judicial authorities. Although, it has been abused in its implementation, the EAW should be issued in cases where the EU Member State intends to:

• prosecute a person when the offence for which the person is being prosecuted has a maximum penalty of at least 1 year of prison; or
• execute a custodial sentence or detention order when the sought person has been sentenced to a prison term of at least 4 months.

Therefore, the EAW should only be used for serious criminal offences. It should never be used for politically motivated or military reasons. In issuing a European Arrest Warrant, the following conditions and requirements must be listed in the warrant:

• Identity and nationality of the person;
• Designation of the judicial authority from which the EAW originates;
• An indication of the existence of enforceable rulings, arrest warrants or other judicial decisions from the issuing Member State;
• Details concerning the nature of the offence;
• Information concerning the offence such as the date, place and circumstances of the offence and the party’s involvement with it;
• Information concerning the penalty or imposed sentence for the offence under the issuing Member State’s law.

Furthermore, the European Arrest Warrant must be translated into the official language (or one of the official languages) of the enforcing Member State. Alternatively, it can also be issued in one of the European institutions‘ official languages accepted by the enforcing state.

There are many aspects of the European Arrest Warrant to be aware of, such as that it has strict time limits in place. A time limit of 60 days after the arrest of the individual exists for the arresting country to execute the EAW and extradite the individual. This applies in cases where the individual does not consent to an arrest. EU countries can also no longer refuse to surrender their own citizens to the other EU Member States. Germany had a ban on extraditing its own citizens before under § 16 German Constitution but this has been amended to allow them to be extradited to other EU countries. 

Double criminality exists whereby the surrender faces the extra test that the criminal act must also be an offence in the arresting country. However, there are 32 categories of offences where this „double criminality“ is not a requirement. For these offences, the only requirement is that the offence can bring sanctions of 3 years imprisonment in the issuing country. These categories of criminal activity include: 

• Arson, 
• Corruption, 
• Cyber-crime, 
• Forgery, 
• Human trafficking, 
• Kidnapping, 
• Murder,  
• Organised crime,  
• Terrorism. 

If you are facing an EAW, you are entitled to certain conditions based on the right to a fair trial and the rights of defence. These rights include contacting a defence lawyer, the right to information about the nature and reason of the arrest, the right to translation and interpretation and the right to legal aid. 

As well as the proportionality test outlined in the next paragraph, the arresting EU member state also needs to determine that the rights of the alleged criminal will be respected following the arrest. Important aspects to determine include ensuring that should they be found guilty, and serve a prison sentence, that there is a right to ask for a review. This review may be after a long period of imprisonment, but it should exist.

There are also grounds where the arresting state can refuse to carry out an EAW. This applies in cases such as:

• Same Offence: double jeopardy whereby the person arrested has already been judged for the same offence;
• Underage: the person is a minor. This is judged as the person arrested has not reached the age of criminal responsibility in the executing country;
• Amnesty: the offence is covered by amnesty in the executing country.

The arresting state can also inquire whether the individual arrested can serve some of the prison sentence in that country if that individual is habitually resident in the country or is a national.

Furthermore, other potential grounds to challenge the EAW can be determined under:

• Lack of Double Criminality: his applies for offences outside of the 32 listed in the Framework Decision on EAW;
• Time Limit: the time period of the offence means that the statute of limitations applies;
• Domestic Criminal Procedure: The executing country has begun criminal proceedings against the individual for the same acts;
• Nature of Judgment: the person has been judged in absentia, without respect of certain conditions.

If you require expert legal counsel to determine how these grounds for a challenge may apply to your case, please make sure to contact our extradition lawyers directly using the contact form below.

Since its inception in 2004, over 180,000 European Arrest Warrants have been issued, and unsurprisingly, there have been controversial decisions regarding its usage. Although designed to combat major criminal and terrorist offences, EAWs have been issued for minor offences, including minimal cannabis possession, driving offences and minor theft offences. EU member states should carry out a proportionality check to determine that the EAW is the appropriate step to take. The member state’s proportionality test should assess the issuing of the European Arrest Warrant while considering the following issues:

• the seriousness of the offence (for example, the harm or danger it has caused);
• the likely penalty imposed if the person is found guilty of the alleged offence (for example, whether it would be a custodial sentence);
• the likelihood of detention of the person in the issuing member state after the surrender;
• the interests of the victims of the offence.

If these steps have not been followed, or if the issuing of the EAW appears to be in breach of these steps, it is worth consulting with a legal professional to assess your rights and possible actions you can take.

The reports on the EAW also addressed compliance issues, with grounds for refusal and non-compliance with time limits playing an important role. Differences in implementing legislation in response to judgments at the European Court of Justice can lead to grey areas and complications. The interpretation by courts in the member states of extradition rules can also lead to controversial decisions. Consulting with our extradition law specialists will ensure that you receive the leading advice you need to formulate a defence strategy.

As extradition lawyers, our team will assess whether the European Arrest Warrant is appropriate to your case and determine with you what actions can be taken on that basis. Working with our legal team is not an admission of guilt and is instead a means of rebalancing the scales when you are sought after by the state. As shown above, state bodies are not beyond employing questionable tactics when it comes to the issuing of the EAW. The concerning nature of extradition means that working with specialised lawyers is essential.

With our network of contact and partner law firms around the world, Schlun & Elseven Rechtsanwälte is ready to defend you, wherever you are based. Employing our legal team allows you to harness our experience and expertise. We will deliver suitable strategies tailored to your legal defence. We have defended clients worldwide in all manners of extradition cases, and our years in the field have allowed us to enhance our cross-examination and negotiation skills. As a full-service law firm, our dedicated extradition team can consult with our firm’s other legal experts concerning different avenues of defence. Contact us now directly to benefit from our services.