Concept and Definition of the European Arrest Warrant
Der European Arrest Warrant (EAW) is a legal instrument issued by a Member State of the European Union that facilitates cross-border extradition of individuals between EU Member States for the purposes of criminal prosecution or execution of a custodial sentence or a custodial preventive measure. The European Arrest Warrant was established by the Council of the European Union’s legal act of June 13, 2002 (Framework Decision 2002/584/JHA) and is one of the most significant measures in the field of judicial cooperation in criminal matters within the EU.
Objectives, Purpose, and Background
Harmonization of Extradition Practices
The aim of the European Arrest Warrant was to replace the traditional and often lengthy extradition process between Member States with a standardized, expedited procedure. This was intended to both improve efficiency and strengthen security within the European area.
Principle of Mutual Trust
The EAW is based on the principle of mutual trust in each Member State’s legal system and the observance of fundamental rights in all Member States. This greatly facilitates the mutual recognition of criminal law decisions.
Legal Foundations
European Law Foundations
The legal basis for the European Arrest Warrant is the Framework Decision 2002/584/JHA of June 13, 2002, which has been transposed into national law by all EU Member States. The Treaty of Lisbon authorized the Union to adopt instruments such as the EAW in the future.
Implementation in National Law
All EU Member States are required to implement the Framework Decision into their respective legal systems. In Germany, this was achieved with the Act on the European Arrest Warrant and on Surrender between Member States of the European Union (European Arrest Warrant Act – EuHbG) of July 20, 2006.
Requirements and Scope of Application
Scope of Application
The European Arrest Warrant can be issued for prosecution or for the execution of a final custodial sentence or custodial preventive measure. This applies to both nationals and foreign citizens, provided they are located in another EU country.
Requirement of Double Criminality
Generally, for enforcement, it must be verified whether the act underlying the European Arrest Warrant is also punishable in the requested state (so-called double criminality). For particularly serious offenses, which are listed in the Framework Decision (e.g., human trafficking, terrorism, murder), the examination of double criminality is waived. These catalog offenses are exhaustively listed in the Framework Decision.
Substantive Requirements for the Arrest Warrant
The European Arrest Warrant must contain certain information and minimum requirements. These include:
- Identity of the wanted person (name, date of birth, etc.),
- Nature and legal classification of the offense as well as the circumstances,
- Penalty amount and status of the criminal proceedings,
- Information on the identity of the issuing judicial authority.
Issuance and Execution Procedure
Issuance
The European Arrest Warrant is generally issued by a judicial authority of the issuing state, once the requirements are met. As soon as the warrant is issued nationally, it is transmitted to the authorities of the state where the person is located, usually with the help of the Schengen Information System (SIS) or via Interpol notice.
Jurisdiction of the Courts
In the issuing state, a court or the competent public prosecution office is generally responsible for issuing the warrant. In the requested state, special courts decide on the admissibility and execution of the surrender.
Surrender Procedure
After receiving the European Arrest Warrant, the authorities of the state where the person is located check the formal and substantive requirements for surrender (extradition). The procedure generally comprises the following steps:
- Arrest of the wanted person in the requested state on the basis of the arrest warrant.
- Judicial Hearing and information about the rights.
- Examination of the Requirements of the European Arrest Warrant, especially the existence of any grounds for refusal.
- Decision on Surrender within a short period (usually 60 days after arrest, or 90 days in complicated cases).
- Surrender of the wanted person to the issuing state.
Time Limits
The European Arrest Warrant provides for an expedited procedure with clear deadlines compared to classical extradition procedures. The decision on surrender must generally be made within no more than 60 days after arrest, and in particularly justified cases, a maximum of 90 days is permitted. The actual surrender should take place no later than ten days after the final approval.
Grounds for Refusal and Restrictions
Compulsory and Discretionary Grounds for Refusal
Article 3 of the Framework Decision contains compulsory and Article 4 contains discretionary grounds for refusal, which must be examined by the executing authorities.
Compulsory Grounds for Refusal
- Ne bis in idem: The person concerned has already been finally convicted or acquitted of the same act.
- Age of Criminal Responsibility: At the time of the act, the person is under the age of criminal responsibility according to the law of the requested state.
- Amnesty: The act cannot be prosecuted under the law of the requested state because it has been amnestied.
Discretionary Grounds for Refusal
- Nationality or habitual residence: Surrender for execution of a sentence may be refused if the requested state guarantees to enforce the sentence itself.
- Pending Proceeding in the requested state for the same factual circumstances.
- Procedural Obstacles, such as limitation under the law of the requested state.
Fundamental Rights and Exceptions
The execution of a European Arrest Warrant must not take place if violations of fundamental rights, especially with regard to the European Convention on Human Rights (ECHR) or the Charter of Fundamental Rights of the European Union, are threatened. Established systemic deficiencies in the justice system of the issuing state may lead to refusal of surrender.
Legal Remedies and Legal Protection
There are regular national remedies against the surrender decision. In Germany, a transfer order may be appealed. In individual cases, a review by the Federal Constitutional Court or the European Court of Human Rights is also possible.
Practical Issues and Criticism
Protection of Fundamental Rights
The tight deadlines and simplified procedure carry the risk that individual rights are insufficiently considered. This is especially problematic in the case of suspected deficiencies in the judicial system of certain states.
Potential for Abuse
There are concerns that the European Arrest Warrant is used by some states to pursue minor offenses for which cross-border prosecution is considered disproportionate by many (“trivial cases”).
Significance in Legal Practice
The European Arrest Warrant has fundamentally changed international cooperation in European criminal justice. The average duration of proceedings has been significantly reduced. It represents a central element of the rule of law in the common European area, but remains subject to ongoing adjustment by courts and legislators to protect individual rights.
Literature and Further Information
- Framework Decision 2002/584/JHA of the Council of June 13, 2002
- Act on the European Arrest Warrant and on Surrender between Member States of the European Union (EuHbG)
- Communications and Guidelines of the European Court of Justice: curia.europa.eu
- Federal Central Criminal Register: Information on implementation and procedural processes
For detailed explanations, it is recommended to consult the relevant legal sources and commentaries on the European Arrest Warrant.
Frequently Asked Questions
Who is responsible for issuing a European Arrest Warrant?
The European Arrest Warrant (EAW) may only be issued by the judicial authorities of the Member States of the European Union. In Germany, these are generally the courts (criminal judges, criminal chambers, investigating judges), but in practice, it is often the public prosecutors who act as ‘judicial authorities’ within the meaning of the Framework Decision on the EAW. The prerequisite is that a national arrest warrant or judgment enforceable by imprisonment exists which meets the requirements of both European and national law. The respective authority examines, before issuing the EAW, whether the statutory requirements—particularly the suspicion of a serious offense, proportionality, and the purpose of extradition—are fulfilled. The EAW is then transmitted to the competent authorities of the requested EU Member State.
Which offenses may be subject to a European Arrest Warrant?
A European Arrest Warrant can be issued for all offenses that are punishable under the law of the issuing state by a custodial sentence or a custodial preventive measure of at least one year. Particularly relevant are the 32 catalog offenses exhaustively listed in Article 2(2) of the Framework Decision—including terrorism, human trafficking, child pornography, corruption, aggravated theft, or murder—for which the principle of double criminality does not apply: in these cases, extradition is possible even if the act is not punishable in the requested state. For non-catalog offenses, however, the conduct must be punishable in both states.
What rights does the person concerned have in extradition proceedings?
Persons subject to a European Arrest Warrant have extensive rights throughout the extradition procedure. In addition to the right to legal representation and an interpreter, there is the right to be informed of the content of the warrant and the alleged offense. The person concerned is entitled to prompt judicial review of the admissibility of the extradition and to the opportunity to present grounds against the surrender. The specialty principle must also be observed: after extradition, the person may generally be prosecuted in the requesting state only for the offense named in the EAW.
Can a European Arrest Warrant be issued for minor offenses?
A European Arrest Warrant can only be issued for crimes or offenses with a minimum custodial sentence of one year or for enforceable custodial sentences of at least four months. Proportionality must be strictly examined: an EAW must not be issued for minor offenses. In practice, a significant public interest is often required to justify cross-border prosecution. In case of doubt, the issuing authority must provide an explicit justification of necessity.
How does the enforcement procedure for a European Arrest Warrant proceed?
The enforcement procedure begins with receipt of the European Arrest Warrant by the competent judicial authority of the requested EU state (for example, the Public Prosecutor General’s Office or the Local Court). This is followed by the arrest of the person concerned and examination of the formal and substantive admissibility. The procedure is rigorously time-controlled: the decision on surrender must generally be made within 60 days, and in particularly urgent cases, within 10 days. The court reviews possible grounds for exclusion, such as violations of fundamental rights or the existence of political offenses, before a surrender to the requesting state can take place.
What reasons may prevent extradition under a European Arrest Warrant?
Extradition can be refused if compulsory or discretionary exclusion grounds exist. Compulsory grounds include, for example, if the person concerned has already been finally acquitted or convicted of the same act (Ne bis in idem) or if asylum status exists in the requested state. Discretionary extradition refusal is possible in case of significant health risks, a risk of inhuman or degrading treatment, or procedural obstacles such as a statute of limitations. Compliance with fundamental rights and minimum human rights standards is also examined and may lead to refusal.
Can German citizens be extradited on the basis of a European Arrest Warrant?
Yes, German citizens can also be extradited to other EU states under a European Arrest Warrant. This represents a historically significant departure from the traditional German prohibition against the extradition of its own nationals. However, Germany may—in certain cases—order that any custodial sentence imposed be enforced domestically after the person concerned has been transferred back to Germany (so-called repatriation clause). The procedure is also subject to special protective provisions, such as those based on fundamental rights, to ensure that the level of protection for the person concerned does not fall below the standard guaranteed by the Basic Law.
