The European Arrest Warrant

The European Arrest Warrant

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The European Arrest Warrant (EAW) is an arrest warrant valid across all European Union Member States. Should you find yourself in a situation where an EAW has been issued against you, it is crucial to consult with extradition law experts.

At Schlun & Elseven Rechtsanwälte, we are a full-service law firm based in Germany. We advise on all issues relating to the European Arrest Warrant and will tirelessly support you in legal disputes. Our full-service approach ensures that you receive advice from experts in the field while also having the matter analysed from many angles, allowing suitable solutions to be found in times of crisis.

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Challenging European Arrest Warrants

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.

Controversies involving the European Arrest Warrant

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.

Determining the Legality of a European Arrest Warrant

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.

Germany’s Extradition Process

German extradition law is a complex matter; therefore, whether you are facing extradition to Germany or extradition from Germany under a European Arrest Warrant, it is vital to consult with our extradition law professionals.

If you are a German citizen, you have strong legal protections under § 16 German Constitution. Still, the extradition of German citizens is permitted in certain limited circumstances as provided for by § 80 IRG. The limitation applies to extradition requests from other European Union Member States and international courts. This section states

Extradition of a German national for the purpose of criminal prosecution is only permissible where

  1. it is guaranteed that the requesting Member State, after imposing a final sentence of imprisonment or other sanction, will offer to return the person pursued on that person’s request for the purpose of enforcement within the area of application of this Act and
  2. the offence has a substantial link to the requesting Member State.

An offence generally has a substantial link to the requesting Member State if the entire offence or essential parts of the offence were committed in that Member State’s sovereign territory and at least essential parts of the result occurred there, or if the offence is a serious crime with a typical cross-border dimension which was committed at least in part in that Member State’s sovereign territory.

Furthermore, extradition from Germany needs to follow specific rules, and this applies not only to German citizens in Germany but others based in Germany. Generally, a person cannot be extradited when the alleged crime does not constitute an unlawful act under German criminal law (§ 3(1) IRG). It is also not possible for “political offences” under § 6 IRG, and the person must be expected to face a fair trial in their home country.

Proving political or other motivations is not always straightforward, but at Schlun & Elseven Rechtsanwälte, we are experienced in examining complex cases. Allow our legal team to investigate your case in greater detail.

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Practice Group: German Extradition & Interpol Law

Practice Group:
Extradition & Interpol Law

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