The European Arrest Warrant serves to strengthen security in the European Union and cooperation between the European judicial authorities. For this purpose, a simplified extradition procedure is made possible within the framework of the European arrest warrant in order to have persons who are accused of a serious crime or who have already been convicted handed over to the EU state in which the crime was committed.
Here you can find out more about the EU arrest warrant, the necessary requirements and the options for taking action against it.
What exactly is the European Arrest Warrant?
With the European Arrest Warrant, a cross-border procedure for simplified prosecution or the execution of a prison sentence was created. This procedure is valid in all EU countries. For example, if a German citizen commits a serious crime in Hungary, the suspect can – at least in theory – be extradited to Hungary without the legality of the arrest warrant being checked. The extraditing state – in this case Germany – only has to decide whether the extradition will take place and whether the person concerned will be detained until the time of handover.
The European Arrest Warrant creates significant simplifications compared to the previously applicable extradition procedures. For example, shorter decision and handover periods apply. The “mutual criminality requirement” (more on that in a moment) is also largely suspended. The European Arrest Warrant also supports the extradition of its own nationals, thus preventing – at least in theory – a state from refusing to extradite its own citizens if they have committed a serious crime in another EU state or are accused of such a crime.
As you can see, the EU arrest warrant means a significant simplification for the cooperation of the European judicial authorities. However, it also comes with risks. Therefore, a number of conditions were created on the basis of which an EU arrest warrant can be issued in the first place.
What are the requirements for the EU arrest warrant?
The European Arrest Warrant may only be issued for serious crimes that carry a prison sentence of at least 12 months in the issuing country. The EU arrest warrant is also admissible if – after a conviction – it is used to execute a prison sentence or a measure involving deprivation of liberty of at least four months. The judicial authorities cooperate directly without involving the diplomatic channel.
For 32 criminal offenses, it is not necessary to check whether mutual criminal liability exists in order to execute the European arrest warrant, i.e. whether both states classify the act as a criminal offence. The only requirement for the EU arrest warrant is that the offense in the issuing state carries a maximum sentence of at least 3 years in prison. These 32 criminal offenses include murder, rape, arms trafficking, kidnapping, money laundering, terrorism, drug trafficking, racism and xenophobia.
Extradition must or may also be refused for various mandatory or optional reasons. Examples of such reasons are:
- The person has already been convicted of the same offense (principle: “ne bis in idem” – in English: “not [convicted] twice in the same matter”).
- The person is still a minor in the country of enforcement.
- The offense falls under an amnesty.
- Criminal proceedings against the person are already underway in the executing state.
- Optional: The offense is time-barred.
- Optional: There is no dual criminality and the offense is not one of the 32 above.
Procedure: How is the EU arrest warrant enforced?
The European Arrest Warrant is issued by the competent judicial authority of the EU country where the crime was committed. Using the Schengen Information System (SIS) it is possible to issue an EU-wide search. The aim is that the person against whom the EU arrest warrant is issued is arrested in the country of residence and then handed over to the country issuing the arrest warrant. To this end, the judicial authorities work together across borders.
In order for the European Arrest Warrant to function correctly, the procedural rights of the suspect or accused person must be protected. These include:
- the right to information (e.g. about the content of the EU arrest warrant)
- the right to a lawyer and education about rights
- the right to an interpreter if necessary
- the right to legal aid
- the right to communicate with family members and the employer
The arrested person must be informed immediately of the content of the European Arrest Warrant and brought before a judge by the end of the next day. Additional deadlines also apply: the executing country must decide within 60 days of the arrest whether the arrest warrant will be executed. If the person concerned agrees to the transfer, this period is reduced to 10 days. After all, there can only be another 10 days between the decision and the handover.
Take action against the European Arrest Warrant: These options are available
The EU arrest warrant is not issued lightly: In Germany, the public prosecutor's office and the respective higher regional court are responsible for the European arrest warrant. Taking action against the European Arrest Warrant is therefore not easy, but with competent support it is also not impossible. The following starting points are possible:
- Checking whether the EU arrest warrant was issued correctly. There is a uniform EU-wide form for issuing the EU arrest warrant, but other extradition documents or the alert in the SIS are also permissible. Nevertheless, mistakes happen again and again, especially with regard to the description of the time of the crime, the place of the crime and the allegation.
- Not extradited under threat of inhumane treatment. Despite a European Arrest Warrant, EU states may only extradite suspects or accused persons if they are not threatened with inhuman treatment in the issuing country. An examination may be necessary for this.
- Rehabilitation. German citizens can insist on returning to Germany after the conviction in order to have the sentence carried out there. The same applies to foreigners with permanent residence in Germany.
- Statute of limitations on the offence. While there is no statute of limitations for the European Arrest Warrant, the underlying offense may well be statute-barred. The extradition is then to be regarded as inadmissible. The statute of limitations depends on the crime in question.
Pure formal errors can also lead to the European arrest warrant not being admissible. The arrest warrant must contain the following information:
- for the person sought: identity and nationality
- for the judicial authority: full address, telephone and fax numbers and e-mail address
- It must state whether there is an arrest warrant, an enforceable judgment or other enforceable judicial decision.
- The crime must at least be described with its type, legal classification, time of crime, place of crime and charge of the crime.
- The statutory penalty or, if convicted, the penalty imposed must also appear in the European Arrest Warrant.
If these formalities have not been complied with, there is a good chance that the arrest warrant will be prevented from being executed.
Received a European Arrest Warrant? We help!
As part of mcintire partners, we primarily look after clients within the EU. We are always up to date with the latest case law in Germany as well as in the European Union and the European Court of Justice. Our law firm is able to act directly for you in any EU country. Last but not least, we draw on an extensive network of partner law firms and agencies, but also on personal contacts - including in the world of authorities and courts.
Do you need help defending yourself against an EU arrest warrant? We support you. Contact us now!