European Arrest Warrant

The European Arrest Warrant (EAW) is a valid arrest warrant that applies to all member states within the European Union (EU). When issued, it mandates another member state to apprehend and transfer a criminal suspect or an individual serving a sentence to the issuing state, allowing them to face trial or complete their detention period. This system simplifies cross-border judicial surrenders and replaces the previously complex extradition procedures among EU member states. The EAW has been in effect across all Member States since January 1, 2004.

A European arrest warrant issued by one Member State holds authority throughout the entire EU territory, based on the principle of mutual recognition. It can only be issued for the purposes of conducting a criminal prosecution (rather than a mere investigation) or enforcing a custodial sentence. Furthermore, it can only be issued for offenses carrying a minimum penalty of one year or more in prison. If a sentence has already been imposed, a European arrest warrant can only be issued if the prison term to be served is at least four months.

Given the significant consequences associated with a European arrest warrant, it should always align with its intended purpose. This implies that the issuing judicial authority must conduct a proportionality assessment before issuing European arrest warrants. This assessment involves considering various factors to determine the justification for issuing the arrest warrant.

Despite its contribution to combating organized crime, the European arrest warrants system is considered “highly controversial” due to its potential for abuse. It raises concerns related to constitutional law and has garnered criticism from human rights organizations. They have expressed worries about the incarceration of innocent individuals, the disproportionate nature of European arrest warrants, and violations of procedural rights.

Background

The European Arrest Warrant, often referred to as the “EAW,” represents a streamlined cross-border judicial surrender process designed for the purpose of prosecution or the execution of custodial sentences or detention orders.

Since January 1, 2004, the Framework Decision on the European arrest warrant has been in effect across every EU Member State. This framework has effectively replaced the previously protracted extradition procedures that existed among EU Member States. The European Union agency for justice adopted the framework to guarantee the legal rights of people accused in criminal proceedings.

The primary objective of the European arrest warrant is to prevent the exploitation of open borders and free movement within the Union by individuals attempting to evade legal accountability. It stands as the most successful instrument for enhancing judicial cooperation in criminal matters within the European Union.

As illustrative examples, the European arrest warrant has been employed in various significant cases, including:

– Apprehending a terrorist involved in the Paris attacks, who was captured in Belgium.
– Arresting an assailant responsible for an attack at the Brussels Jewish Museum in France.
– Tracking down a failed London bomber in Italy.
– Locating and capturing a German serial killer in Spain.
– Surrendering a suspected drug smuggler from Malta by the UK.
– Pursuing a gang of armed robbers sought by Italy, leading to the arrest of its members in six different EU countries.

How does it work?

A European arrest warrant issued by the judicial authority of one EU member state holds validity across the entire EU territory. This mechanism functions on the basis of mutual recognition, facilitating direct communication and coordination between judicial authorities.

The national judicial authorities can issue a European arrest warrant can be issued for several purposes:

1. Prosecuting an individual when the criminal offence they are accused of is subject to a custodial sentence or detention order, punishable under the laws of the issuing Member State with a maximum duration of at least 12 months.

OR

2. Enforcing a custodial sentence or detention order when the imposed sentence is for a minimum period of at least 4 months.

Strict time limits

One of the primary merits of the European Arrest Warrant (EAW) lies in its rigorous time constraints. This feature enables expeditious procedures and prevents individuals from being held in custody for excessive periods while awaiting a surrender decision. In cases where the requested person consents to their surrender, the country of arrest must reach a final decision on executing the European arrest warrant within 10 days.

Otherwise, if consent is not given, the final decision should be made within 60 days following the arrest of the requested person. The surrender of the requested person must occur as expeditiously as possible, on a mutually agreed-upon date, and no later than 10 days after the final decision regarding the execution of the European arrest warrant.

Elimination of Double Criminality Check for 32 Offense Categories

Another notable advantage of the European arrest warrant is the absence of a requirement to verify whether the act constitutes a criminal offense in both countries for 32 specific offense categories. That eliminates the need for the lengthy extradition procedures that previously existed among EU member states.

The sole condition is that the alleged offence must carry a maximum penalty of at least 3 years of imprisonment in the issuing Member State. For other offenses, surrender may be contingent upon the act for which the European arrest warrant has been issued also constituting an offense in the executing Member State.

No political involvement

Decisions regarding the EAW are exclusively made by judicial authorities, devoid of any political considerations. The executive branch is prohibited from interfering with the determinations of the judicial authority. This judicial process also safeguards the rights of the person sought.

Surrender of Nationals

EU member countries are no longer permitted to refuse the surrender of their nationals unless the executing state commits to executing the sentence or detention order under its domestic law.

Guarantees

The judicial authority of the requested member state might need assurances that:

a. If the offense leading to the issuance of the European arrest warrant is punishable by a life sentence or life-time detention order, the requested person will retain the right to seek review after a specific duration.

b. The requested person, whether a national or resident of the executing state, will be returned to that state to serve the custodial sentence or detention order imposed in the issuing Member State.

Limited Reasons for Refusal

The executing judicial authority possesses the authority to decline the execution of the European Arrest Warrant (EAW) solely in the event that one of the compulsory or discretionary grounds for refusal is applicable.

Mandatory Grounds

1. The offense is subject to amnesty (meaning the executing country could have prosecuted, but the offense is now protected by an amnesty in that country).
2. The individual has already been tried for the same offense (known as “ne bis in idem”).
3. The individual is a minor and has not reached the age of criminal responsibility in the executing country.

Discretionary Grounds, when adopted by Member States, include

1. Lack of double criminality for offenses other than the 32 specified in the Framework Decision on EAW.
2. There is an ongoing criminal proceeding in the executing country for the same acts.
3. The statute of limitations is applicable.
4. The individual has been tried in absentia without adhering to specific conditions.

Proportionality check

The European arrest warrant or surrender request should be proportional in its aim. As such, the issuing judicial authorities need to execute a proportionality check before they decide to issue a European arrest warrant.

Even when a case falls within the scope of the EAW Framework Decision stipulated in Article 2(1), the issuing judicial authorities need to consider whether issuing a European arrest warrant is justified. Considering the severe consequences that a European arrest warrant has on an individual’s liberty, the executing judicial authority must consider all the relevant factors before issuing one.

In particular, the issuing judicial authorities must consider the following factors:

• The seriousness of the alleged offense (for instance, the danger or harm caused)
• The likely penalty if the accused person is found guilty (for instance, will it be a prison sentence?)
• The interests and rights of the victims of the alleged crime.
• The likelihood of the person concerned being detained in the executing member state.

Double criminality

Double criminality is a principle within international extradition law that enables states to decline the extradition of individuals if the actions alleged to constitute a criminal offense in the requesting state would not have amounted to a criminal offense in the state from which extradition is sought.

In the context of the European arrest warrant Framework Decision, the necessity for double criminality is eliminated for numerous categories of crimes. Instead, it is transformed into a discretionary rather than an obligatory basis for rejecting extradition requests for offenses that do not fall within those specified categories.

The categories within which are as follows:

• Arson,
• Computer-related crime,
• Corruption,
• Counterfeiting currency,
• Counterfeiting and piracy of products,
• Crimes within the jurisdiction of the International Criminal Court,
• Environmental crime, including illicit trafficking in endangered animal species and in endangered plant species and varieties,
• Facilitation of unauthorised entry and residence,
• Forgery of means of payment,
• Forgery of administrative documents and trafficking therein,
• Fraud, including fraud affecting the financial interests of the European Union,
• Illicit trade in human organs and tissue,
• Illicit trafficking in cultural goods, including antiques and works of art,
• Illicit trafficking in hormonal substances and other growth promoters,
• Illicit trafficking in narcotic drugs and psychotropic substances,
• Illicit trafficking in nuclear or radioactive materials,
• Illicit trafficking in weapons, munitions and explosives,
• Kidnapping, illegal restraint and hostage-taking,
• Laundering of the proceeds of crime,
• Murder, grievous bodily injury,
• Organised or armed robbery,
• Participation in a criminal organisation,
• Racism and xenophobia,
• Rape,
• Racketeering and extortion,
• Sabotage
• Sexual exploitation of children and child pornography,
• Swindling,
• Terrorism,
• Trafficking in human beings,
• Trafficking in stolen vehicles,
• Unlawful seizure of aircraft or ships.

The Framework Decision does not explicitly address whether secondary involvement in, or an attempt to commit, an offense falling within the listed categories automatically exempts it from the correspondence requirement.

Another matter of concern is the precision of designating an offense as belonging to a category exempt from the correspondence requirement. There is also a question regarding whether the executing judicial authority is obligated to accept the issuing judicial authority’s classification as definitive.

Procedural rights

The European Union has a set of procedural rights for individuals accused or suspected in criminal proceedings when initiating surrender procedures. These rules build on the fundamental rights of an individual to have a fair trial and legal aid.

These fundamental rights include:

• The right to information.
• The right to translation and interpretation.
• Right to legal aid.
• Procedural safeguards for children.
• Right to access an attorney and have a third-party and consular authorities informed when deprived off any liberty.

Contact our Europol Lawyers if you have questions/issues on European Arrest Warrant.

Iryna Berenstein

Associated Partner

Mrs. Berenstein is a distinguished and outstanding lawyer with profound experience and exceptional legal knowledge in the field of International Private Law, Financial Law, Corporate Law, investment regulation, Compliance, Data Protection, and Reputation Management.

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