The European Arrest Warrant

Facing a European Arrest Warrant can be a daunting prospect. It is not uncommon for individuals to be arrested at international airports or other entry points due to EAWs issued against them. In such times of crisis, the advice of experienced extradition lawyers is crucial.

When faced with an EAW, you will have the option of challenging or accepting it. Deciding whether to challenge the EAW is a time-sensitive matter, and it is vital to use that time correctly. Once engaged, our extradition team will focus on your defence strategy and outline your legal rights.

A national judicial authority may issue an EAW for prosecuting a person when the offence for which the person is being charged has a penalty of at least 1 year of prison or execution of a custodial sentence or detention order when the individual has been sentenced to a prison term of at least 4 months.

However, European Arrest Warrants are not always justified and have been issued for minor offences. There have been controversies with their issuance, and complications exist with its implementation and use across the different Member States. For these reasons, it is advisable to consult with experienced legal professionals.

Member States can refuse to carry out an EAW, and this refusal 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, whereby the individual arrested has not reached the age of criminal responsibility in the executing country;
• Amnesty: the offence is covered by amnesty in the executing country.

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

• Lack of Double Criminality: this applies for offences outside of the 32 listed in the Framework Decision on EAW;
• Time Limit: the time of the crime 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 for certain conditions.

Our extradition experts, once engaged, will work tirelessly to examine your case from all angles. With this approach, we can create strategies suited to your individual case. Contact us now using the contact details below.

Since its introduction, the European Arrest Warrant has not been without some controversies and difficulties. Since its inception in 2004, there have been over 180,000 EAWs issued. Although the European Arrest Warrant was designed to target major criminal offences, there have been incidents where EAWs have been issued for more minor offences, such as minimal cannabis possession, minor driving offences, and minor theft offences.

Even though such cases may not lead to a conviction in court, having an EAW against you, alongside the possibility of extradition, can be damaging and stressful. EU Member States should undertake a proportionality check to determine whether the EAW was issued correctly. Our legal team will advise you on how to deal with such matters.

Other reasons to challenge the proportionality of an EAW to include:

• 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 crime (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, consider contacting our lawyers and have them assess the situation. Our team will analyse whether your rights were breached and what possible actions you can take.

Compliance issues have also featured in reports on the EAW, with grounds for refusal and non-observation of time limits featuring prominently. Other complications arise with the differences in implementing legislation in response to the European Court of Justice judgments. Interpreting extradition law by Member States’ courts has also led to controversial decisions. Consulting with our extradition law specialists will ensure that you receive leading advice and allows us to work together on your defence strategy.

The European Arrest Warrant has strict time limits in place, such as the 60-day limit following the individual’s arrest for the arresting country to execute the EAW and extradite the individual. This time limit applies in cases where the individual does not consent to an arrest and challenges the EAW.

As seen above, Member States can no longer simply refuse to surrender their own citizens to other EU Member States when a European Arrest Warrant. Germany had a constitutional ban on extraditing its own citizens under § 16 German Constitution but it has been extended to allow for the EU Member States to pursue it. However, there are strong legal protections in place for German citizens, and European Arrest Warrants need to be correctly issued to overrule such strong protections.

Generally, double criminality needs to exist for extradition to be allowed. This means that the criminal act must also be an offence in the arresting country for that country to extradite the individual.

However, with the EAW there are 32 categories of offences where this „double criminality“ is not a requirement. In the case of these offences, the primary requirement is that the alleged offence against the individual can bring sanctions of 3 years or more of imprisonment in the issuing country. These categories of criminal activity include:

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

Furthermore, when facing an EAW a defendant is allowed access to advice from a defence lawyer and to expect a fair trial. At Schlun & Elseven, our extradition lawyers are ready to support you.