A Guide to

The European Arrest Warrant

October 2012

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Acknowledgment

Although the views expressed in this Guide are our own, we are grateful for the generous support of

the Criminal Justice Programme of the European Commission, the Oak Foundation and the Global

Criminal Justice Fund of the Open Society Foundations. Thanks also to Mellissa Curzon-Berners and

Lena Donner for their valuable assistance.

With financial support from the

Global Criminal Justice Fund of the Open Society Foundations

With financial support from the Criminal Justice Programme of

the European Commission

The European Arrest Warrant

The Council Framework Decision on the European Arrest Warrant and the Surrender Procedures

between Member States (the EAW Framework Decision) was adopted in 2002 and entered into

force on 1 January 2004. The legislation aimed to facilitate the surrender of people accused or

convicted of criminal offences between EU Member States to improve cooperation in fighting

serious cross-border crime such as terrorism.

Example: Pierre, who is French but now residing in the UK, is wanted in France for burglary:

EAW Issued (France)

Designated Authority Receives EAW

(UK)

Extradition to France within 10 days

Arrest (UK)

Final Decision (UK)

Bail Hearing (UK)

Extradition Hearing

(UK)

Consent given Consent not given

60 days

Release

10 days

Extradition to France within 10 days

Release

The EAW – Key provisions

What kind of measure is the EAW Framework Decision?

The EAW Framework Decision is a ‘mutual recognition’ instrument. This means that when the state

where an offence took place issues a European Arrest Warrant (EAW), the state where the person

who is alleged to have committed it, or is wanted to serve a custodial sentence in relation to it, is

located is required to execute it. It replaced all previous extradition treaties between Member

States.

What is a European Arrest Warrant?

Article 1(1) of the EAW Framework Decision states that ‘the European Arrest Warrant is a judicial

decision issued by a Member State with a view to the arrest and surrender by another Member State

of a requested person.’ The EAW Framework Decision establishes a fast-track system for

surrendering people from one Member State to another. While an EAW is technically an instrument

involving surrender rather than extradition, in this guide we refer to the two interchangeably.

Which authorities can issue/execute EAWs?

Under Article 6(3) of the EAW Framework Decision, Member States must designate the judicial

authority competent to issue and/or execute EAWs. This is done by notifying the General Secretariat

of the Council of the EU.

Under Article 7(1) each Member State may also designate a central authority to be responsible for

‘the administrative transmission and reception of EAWs as well as for all other official

correspondence ’. This is also done by notifying the General Secretariat. Recital 9 makes it clear that

the role of the central authority ‘must be limited to practical and administrative assistance’.

When can an EAW be issued?

Under Article 1(1) of the EAW Framework Decision an EAW can only be issued ‘for the purposes of

conducting a criminal prosecution or executing a custodial sentence or detention order’.

Under Article 2(1), an EAW can only be issued for the purpose of conducting a criminal prosecution if

the offence is punishable by a custodial sentence or detention order of a maximum of at least twelve

months under the law of the issuing Member State. An EAW can only be issued for the purpose of

executing a custodial sentence that has already has been passed if the sentence is for a minimum of

least four months.

What is the process for issuing an EAW?

A form of EAW is set out in the Annex to the Framework Decision. Article 8 lists the information that

must be included in an EAW, which is all included on the standard form and includes details such as

the identity and nationality of the requested person, details about the issuing authority, the nature

and legal classification of the offence, a description of the circumstances in which the offence was

committed and, if there has been a final judgment, the penalty imposed.

Once the location of the requested person is known, the issuing judicial authority will transmit the

EAW to the executing judicial authority. This may follow, or be accompanied by, an alert via the

Schengen Information System or an Interpol notice.

What happens once an EAW has been issued?

The executing Member State will then arrest the requested person. Article 11 provides that upon

arrest the requested person must be informed of the EAW and its contents and will be given the

option of consenting to surrender. The requested person must be granted the right to access a

lawyer and an interpreter in accordance with the law of the executing Member State, and states

must have measures in place to ensure that any consent to surrender is done voluntarily and in full

awareness of the consequences (Article 13(2)).

If the requested person does not consent to surrender then he/she is entitled to be heard by the

executing judicial authority.

What is the process for the executing authority to decide whether to surrender the requesting

person?

The executing authority must decide within time limits prescribed by the EAW Framework Decision

whether to surrender a requested person. If the executing authority is not satisfied that the EAW

includes the information specified in Article 8 then the executing Member State may request the

necessary additional information (Article 15(2)).

If consent to surrender is given, a final decision on the execution must be taken within ten days of

that consent (Article 17(2)).

If the requested person does not consent to surrender then he/she is entitled to be heard by the

executing judicial authority. A final decision on execution must be made no later than sixty days

following the date of arrest. The extradition hearing itself is held in accordance with the domestic

law of the executing Member State (Articles 17(3) and 19).

If the executing judicial authority decides to surrender the requested person this must take place no

later than ten days following the final decision.

Whatever the final decision, the executing judicial authority must notify the issuing judicial authority

of it immediately, and reasons must be given for any refusal to execute an EAW (Article 17(6)).

Can the time limits be extended?

All time limits may be extended in exceptional circumstances, generally due to procedural problems

in the executing state (Articles 17(4), 23(3)).

Article 23(4) provides that surrender may exceptionally be temporarily postponed for ‘serious

humanitarian reasons’. One example is where there are ‘substantial grounds’ for believing that

surrender would ‘manifestly endanger the requested person’s life or health’. The EAW must still be

executed as soon as the relevant grounds (for example serious ill-health) have ceased to exist.

Will someone remain in detention whilst awaiting extradition or the outcome of an extradition

hearing?

The competent judicial authority in the executing state must decide whether that person should

remain in custody pending his/her extradition hearing. This decision is made according to the

domestic law of the executing Member State on pre-trial detention, provided that it takes all

measures deemed necessary to prevent the person absconding (Article 12).

Are there any instances when a Member State must refuse to execute a warrant?

Article 3 lists the three circumstances in which it is mandatory for the executing judicial authority to

refuse to execute a warrant. These are:

Where the offence is covered by an amnesty in the executing Member State (Article 3(1));

Where the requested person has already been finally acquitted or convicted by a Member

State in respect of the same acts that make up the offence for which surrender is sought,

provided that if a sentence was issued for the acts it has been served, is currently being

served or many no longer be executed under the law of the sentencing Member State (the

ne bis in idem rule) (Article 3(2)); and

If the requested person may not, owing to his age, be held criminally responsible under the

law of the executing Member State (Article 3(3)).

Are there any instances when a Member State may choose whether or not to execute a warrant?

Article 4 of the EAW Framework Decision lists seven circumstances in which the executing judicial

authority has discretion whether or not to execute the warrant. These include:

If the EAW relates to acts which would not constitute a criminal offence in the executing

Member State (except for 32 categories of offence listed in Article 2(2) such as terrorism,

murder, certain drugs offences and rape) (Article 4(1));

If the requested person is already being prosecuted for the offence in the executing Member

State (Article 4(2));

Where authorities of the executing Member State have decided not to prosecute for the

offence on which the EAW is based or have halted proceedings, or a final judgement has

already been passed in respect of the relevant acts which prevent further proceedings

(Article 4(3));

Where criminal prosecution or punishment is statute-barred according to the law of the

executing Member State and the acts covered by the EAW are within its jurisdiction (Article

4(4));

Where the execution of the EAW would contravene the ne bis idem rule because the

requested person has been finally judged by a third state (i.e. one not party to the EAW

Framework Decision) (Article 4(5));

Where the EAW has been issued for the purposes of execution of a custodial sentence, if the

requested person is staying in, or is a national or resident of the executing Member State,

then the EAW may be refused provided that State undertakes to execute the sentence itself

(Article 4(6)); and

Where the EAW relates to offences which were committed wholly or partly in the executing

Member State, or were committed outside the territory of the issuing Member State (Article

4(7)).

Are there any further bars to extradition?

Under Article 5 of the EAW Framework Decision individual Member States may decide, by passing

domestic legislation, that surrender will be refused unless the issuing Member State gives one or all

of the following guarantees:

If the EAW was issued following a trial in absentia, and if the requested person was not

summoned to attend the trial, surrender may be subject to the issuing Member State

guaranteeing an opportunity to apply for a retrial (Article 5(1));

If the offence forming the basis of the EAW is punishable by a life sentence or life-time

detention order, surrender may be subject to the issuing Member State having certain

provisions for a review of the sentence (Article 5(2)); and

If the requested person is a national or resident of the executing Member State surrender

may be subject to the issuing Member State returning the requested person post-trial to

serve his/her sentence.

Are there any human rights grounds on which a Member State can refuse to execute an EAW?

All Member States are signatories to the European Convention on Human Rights (ECHR) and are

therefore bound by its terms.

Recital 13 of the EAW Framework Decision states that:

‘No person should be removed, expelled or extradited to a State where there is a serious risk that he

or she would be subjected to the death penalty, torture or other inhumane or degrading treatment or

punishment.’

Article 1(3) makes it clear that the Framework Decision does not modify the obligation to respect

fundamental rights and fundamental legal principles as enshrined in Article 6 of the Treaty on

European Union.

However, it is important to note that there is no explicit right to refuse to execute an EAW on human

rights grounds in the main body of the EAW Framework Decision. Some countries, such as the UK,

have written a human rights refusal ground into national legislation. If your jurisdiction does not

explicitly provide for this, then there may still be human rights arguments that can be put forward in

EAW cases based on the provisions above and the rights enshrined in the ECHR.

Article 3 (No one shall be subjected to torture or to inhuman or degrading treatment or punishment)

Every Member State has obligations under the ECHR which should prevent them from extraditing

someone who can show that they are at real risk of being subjected to ill-treatment in the issuing

state. It is established by case law from both the European Court of Human Rights and the Court of

Justice of the EU that an assumption that all EU Member States fulfil their obligations under the

ECHR is not easily displaced but can be rebutted by clear and cogent evidence (see for example MSS

v Belgium and Greece1 and NS and others v SSHD2).

The possibility of raising a potential breach of Article 3 as a bar to extradition should be considered.

Situations where this may be possible will be considered in more detail in the example scenarios at

the end of the paper.

Article 8 (Right to respect for private and family life)

Under Article 8 of the ECHR, everyone has the right to respect for his private and family life, his

home and his correspondence. Public authorities can only interfere with this right in accordance

with the law and as necessary in a democratic society in the interests of national security, public

safety or the economic well-being of the country, for the prevention of disorder or crime, for the

protection of health or morals, or for the protection of the rights and freedoms of others.

Article 8 concerns can arise in extradition cases where the requested person has an established

family life in the executing state, especially where children are involved. It may be that extradition

serves a legitimate aim within Article 8(2), the question that you should be asking is whether the

extradition is proportionate to that legitimate aim. Situations where this may be possible will be

considered in more detail in the example scenarios at the end of the paper.

Can an EAW be refused because the circumstances of the case make extradition disproportionate?

There is no explicit requirement in the EAW Framework Decision that a state applies a

proportionality test when issuing an EAW and no refusal ground that allows an executing Member

State to refuse to execute an EAW on these grounds. This may be an issue where, for example, the

offence in question is minor, the person requested is in ill-health or a great deal of time has passed

since the offence was committed.

However, proportionality is a general principle of EU law and the European Commission has stated

that states should apply a proportionality test before issuing an EAW. It is therefore worth bearing in

mind as a possible argument against extradition when working on EAW cases.

If the Member State orders execution of the EAW is there anything else you can do to prevent

extradition?

1 Application no. 30696/09, Council of Europe: European Court of Human Rights, 21 January 2011

2 C-411/10 21 December 2011

It may be possible to appeal the final surrender decision. This possibility, as well as conditions and

procedures attached to it, will vary in accordance with national law.

If your case raises human rights arguments, you may also be able to obtain relief from the European

Court of Human Rights under the ECHR. In particular, you may be able to seek interim relief under

Rule 39, which requires the extradition proceedings to be halted until the Court has ruled on any

potential breaches of the Convention they may cause. Further information about bringing a Rule 39

application can be found in the training module on the European Court of Human Rights.

What happens if there are multiple requests for the same person?

Where two or more Member States have issued an EAW the competent judicial authority in the

executing Member State must decide which to execute. When making this decision, the judicial

authority should take all the relevant circumstances into account, especially the relative seriousness

and place of the offences, the dates of the EAWs and whether the EAW is issued for the purpose of

prosecution or for execution of a custodial sentence (Article 16(1)).

If a Member State has issued an EAW which conflicts with a request presented by a non-EU country,

the competent judicial authority must make a decision as to which request takes precedence. This

decision must involve a consideration of all relevant circumstances as described above and any

circumstances mentioned in the applicable convention with the third country.

What happens if the requested person is wanted to stand trial for a criminal offence in the

executing state?

The executing authority may postpone the surrender of the requested person so that he or she can

be prosecuted in the executing Member State (or, if sentencing has already taken place, so that he

or she can serve the sentence). Alternatively, the executive judicial authority may surrender the

requested person under conditions to be determined by mutual agreement (for example that the

person be returned following the conclusion of proceedings and having served his or her sentence in

the issuing state).

Lorenzo has been arrested in Italy on an EAW issued by Greece for theft committed when he lived

there a year earlier. Lorenzo denies committing the offence and does not want to be extradited

to Greece. He is worried that he will spend a long time in detention awaiting trial and that he will

suffer due to the horrendous prison conditions in Greece.

Examples scenarios

Think about whether Lorenzo is likely to be extradited to stand trial and what you could do as his

defence lawyer to argue against extradition.

As a defence lawyer in an EAW case, the first thing you should do is try and make contact with a

lawyer in the issuing state, in this case Greece. This can be essential not only to gather further

information about the case but also to make sure that, if Lorenzo is extradited, he has a lawyer to

represent his interests. A Greek lawyer, for example, may be able to talk to the prosecution

authorities to see whether the case is ready for trial. If it is not then he or she may be able to

persuade the authorities to delay asking for Lorenzo’s surrender until the case is finalised. This

would avoid Lorenzo spending a long time in Greece awaiting trial.

Can an EAW be issued in relation to Lorenzo’s offence?

In this case an EAW has been issued to request Lorenzo’s surrender to stand trial in Greece. Provided

that theft is punishable in Greece with a custodial sentence or detention order for a maximum

period of at least 12 months then an EAW can be issued (Article 2(1)).

Are there any mandatory refusal grounds for the EAW?

It is unlikely that theft is covered by an amnesty under Italian law and as the offence took place in

Greece it is unlikely that Lorenzo has already been tried for same acts so ne bis in idem will not

apply. Therefore, provided that Lorenzo has reached the criminal age of responsibility in Italy, there

are no mandatory refusal grounds under Article 3.

Are there any grounds for optional non-execution of the EAW?

None of the optional grounds for refusal listed in Article 4 are applicable to the facts of Lorenzo’s

case.

Are there any further grounds on which you could argue that the EAW should not be executed?

As Italy is a signatory to the ECHR, it is under an obligation not to extradite individuals where there is

a serious risk that their Convention rights will be violated upon surrender (see Soering v UK3 in

relation to Article 3 ECHR). You could therefore attempt to argue that surrendering Lorenzo to Italy

would amount to a breach his right not to be subjected to torture or other inhumane treatment

under Article 3 ECHR. However, due to the assumption that EU Member States abide by their

Convention obligations, the burden of proof in such cases is very high and you must be able to

provide substantial evidence supporting your claim specifically in order to successfully resist

3 Soering v UK [1989] ECHR 14

Graznya has been arrested in the UK pursuant to an EAW issued by Poland in relation to a 10

month sentence suspended for three years that she received for the possession of 4.04 grams of

amphetamine for personal use in 2006 when she was seventeen years old. A year after the

sentence, Graznya moved to the UK where she has been in permanent employment ever since

and has not used drugs. In 2010, Poland activated the suspended sentence on the basis that

Graznya had broken the terms of her probation by moving to the UK. An EAW was issued and

Graznya has been arrested. She is the sole carer for her 11 month old son, who will have to be

taken into care if she is extradited to Poland.

extradition on these grounds. Despite there being no explicit human rights refusal ground in the

EAW Framework Decision, you could use Article 1(3) and Recital 13 to support your argument in this

regard.

Lorenzo’s guilt or innocence is a matter to be decided in the issuing state, and will therefore not

constitute a barrier to surrender.

If the courts in Italy order Lorenzo’s surrender to Greece is there anything further you can do?

If Lorenzo is going to be surrendered to Greece then you should make contact with a lawyer in

Greece to make sure that he has someone in place to represent him as soon as he arrives at pre-trial

hearings.

Think about whether Graznya is likely to be extradited to serve this sentence and what you could

do as her defence lawyer to argue against extradition.

As a defence lawyer in an EAW case, the first thing you should do is try and make contact with a

lawyer in the issuing state, in this case Poland. This can be essential not only to gather further

information about the case but also to make sure that, if Graznya is extradited, she has a lawyer to

represent her interests.

Can an EAW be issued in relation to Graznya’s offence?

Yes. Under Article 2(1) an EAW can be issued where a sentence of at least four months has been

passed. As Graznya was sentenced to 10 months imprisonment, an EAW can be issued.

Are there any mandatory refusal grounds for the EAW?

It is unlikely that possession of drugs is covered by an amnesty under UK law and as the offence took

place in Poland ne bis idem is unlikely to apply. Therefore, provided that the criminal age of

responsibility is 17 or under in the UK (the age at which Graznya committed the offence) then there

are no mandatory refusal grounds under Article 3.

Are there any grounds for optional non-execution of the EAW?

Article 4(6) provides that if the EAW has been issued for the purposes of execution of a custodial

sentence and the requested person is staying in, or is a national or resident of, the executing

Member State then the EAW may be refused provided that the executing state undertakes to

execute the sentence itself. As Graznya has been resident in the UK for four years she may prefer to

serve the sentence in the UK, although the UK would have to agree to execute the sentence. A

recent preliminary ruling in the Grand Chamber of the Court of Justice of the European Union

indicates that the fact that Graznya is a non-national should not automatically preclude the UK

allowing her to serve her sentence there.4

Are there any further grounds on which you could argue that the EAW should not be executed?

You may wish to consider challenging the extradition on the grounds that it would breach Graznya’s

and her child’s rights under Article 8 of the ECHR. Graznya has established a stable private life in the

UK with permanent employment and it is arguable that extraditing her would amount to a

disproportionate interference with her private and family life despite the legitimate aim of executing

her sentence. Graznya’s extradition would also mean that her child would be taken into care, which

would have an irreversible effect on the child’s life and could arguably amount to disproportionate

interference with its Article 8 rights.

It should be noted that courts are often unwilling to hear arguments that do not directly relate to a

refusal ground written in the EAW Framework Decision. However, all Member States are signatories

to the ECHR and all Member State courts should be willing to consider valid arguments that relate to

that state’s obligations under the Convention. If you feel that you have a strong human rights

argument against extradition then, if all domestic appeals have failed, you could bring a case at the

European Court of Human Rights in Strasbourg. If you do this then you should consider making a

Rule 39 application to halt the extradition until the case is decided. Further information about

bringing a case before the European Court of Human Rights and making a Rule 39 application can be

found in the training module on the European Court of Human Rights.

Is there anything else that you could do as Graznya’s defence lawyer?

Graznya is facing extradition in relation to a relatively minor offence that she committed years ago.

As discussed above, there is no requirement to conduct a proportionality test in the EAW Framework

Decision, but Poland should nevertheless have considered the proportionality of the warrant before

issuing it. You should discuss this with your Polish counterpart and ask him/her to speak to the

authorities in Poland to discuss the possibility of alternatives to Graznya’s surrender. This can be

very effective. In some cases it may lead to the person paying a fine instead of being extradited and

in some cases it may lead to the warrant being withdrawn.

If the courts in Italy order Graznya’s surrender to Poland is there anything further you can do?

If Graznya is going to be surrendered to Poland then you should make contact with a lawyer in

Poland to make sure that she has someone in place to represent her as soon as she arrives at pre-

trial hearings.

4 Case C-42/11 João Pedro Lopes Da Silva Jorge (Grand Chamber, 5 September 2012)

Links to key texts and resources

EAW materials

Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the

surrender procedures between Member States (downloadable here).

Report from the Commission to the European Parliament and the Council on the implementation

since 2007 of the Council Framework Decision on the EAW, 11 April 2011 (downloadable here).

Fair Trials International materials

Communiqué issued after the Fair Trials International Legal Experts Advisory Panel Meeting

(Cambridge, 28 March 2011): The European Arrest Warrant (downloadable here).

Fair Trials International, The European Arrest Warrant seven years on – the case for reform, May

2011 (downloadable here).

The European Arrest Warrant: the role of judges when human rights are at risk, Catherine Heard and

Daniel Mansell, New Journal of European Criminal Law Volume 2/2001/02 (downloadable here).