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Toolkit: European Arrest Warrants
The information contained in this document is provided for information purposes only and does not constitute legal advice. You should always seek professional legal advice from a lawyer qualified to practice in the jurisdiction you are in.
What is a European Arrest Warrant?
A European Arrest Warrant (EAW) is a legal instrument that can be used between EU Member States. The EAW document requests your arrest in one EU Member State and your transfer (surrender) to another EU Member State either to face trial or to serve a prison sentence if court proceedings already took place.
The European Union Member State that is looking for you and has issued the EAW is called the ‘issuing Member State’. The Member State that you are in and that has contacted (arrested or detained) you on the basis of that EAW is called the ‘executing Member State’.
N.B.: There may also be an international arrest warrant other than the EAW (e.g. INTERPOL Red Notice) that will allow for your arrest and surrender outside the EU. Information in this guide only relates to the EAW process within the European Union Member States.
In what situations can an EAW be issued against me?
An EAW can be issued against you if:
- a European Union Member State is looking for you because you have been charged with a criminal offence for which, in case of conviction, you can potentially be given more than 12 months of prison sentence and that Member State wants you to face trial there; or
- a European Union Member State has convicted you with more than 4 months of prison sentence and wants you to serve that sentence there.
An EAW can be issued only in those two situations mentioned above. This means that an EAW should NOT be issued, for example, where:
- the issuing Member State is not ready to start the trial, but just wants to question you (or needs you participate to in the gathering of other evidence);
- you are charged with an offence which carries no prison sentence or the sentence is less than 12 months imprisonment; or
- you are not the accused person in criminal proceedings.
Can I find out whether there is an EAW against me?
There is currently no simple way or system to find out whether there is an EAW against you. As the purpose of the warrant is to find you and obtain your arrest, the police will usually not disclose this information to you before you are officially detained in connection with an EAW.
What are my rights?
When you are served with an EAW, it is likely that you will be initially arrested and brought to a police station. It may be that you don’t speak the language of the country you are detained in or even the language of the state which has issued the EAW against you.
Before you answer any questions that the police may ask, you have the right to receive some information about the criminal procedure in the language you speak and understand. For this purpose, the officers who are holding you must give you a written Letter of Rights explaining your rights in the EAW process. This letter should be written in a language you understand, and in a simple and understandable way.
N.B.: Ask for the letter if you do not receive it and always ask questions if you don’t understand what is written in the letter or what is said to you.
The Letter should explain that you have the following rights:
- Information: To understand why the EAW has been issued against you, that is, which country is looking for you, what is the reason you are searched, what crime have you been accused of or sentenced for, etc.
- Lawyer: Before you say anything or agree to anything, you have a right to speak to a lawyer in private. If you cannot afford to pay for lawyer’s assistance, you don’t lose that right and should have the right to receive their assistance for free.
N.B.: If you don’t have a lawyer either because you don’t know anyone or cannot pay for their services, you should tell the police and ask them to help you contact a lawyer.
- Language assistance: If you don’t speak the language of the country you are held in and you cannot communicate with the officers who are holding you or your lawyer freely, you have a right to be assisted by an interpreter. You don’t have to pay for the services of the interpreter. The content of the EAW must also be translated for you either in writing or summarised orally.
- Consent: you have a right to agree to be sent to the country that has issued the EAW.
N.B.: Always consult a lawyer before you make that decision. Your lawyer will give you the best advice on what to do in your specific situation. You cannot be asked to give your consent to the surrender before you have had the chance to speak to your lawyer.
- Process: If you do not agree to be sent to the country that has issued the EAW, you have the right to challenge the EAW and ask to be heard by a judge of the country you are in before you are extradited. You have a right to understand how that will happen and what will happen to you next.
If you are arrested or detained, you also have the right to contact someone you wish to inform about your detention and to contact the consular authorities of your country of nationality.
What is the EAW process?
The specific details of the EAW process can vary from country to country, so you may need to ask your lawyer in the country you are in for more detailed information on the process and the timing of each step of the process. However, in all states. if you are detained in connection with an EAW, you have a right to be heard by an independent judge (or other independent judicial authority) to determine whether you need to be held in detention and to decide whether to surrender you to the country that issued the EAW. Depending on the country it may be several hours or even a day for this hearing to take place, during which time you may be held in detention.
Will I be arrested and detained during the EAW process?
Once there is an EAW against you, your name will appear on a Europe-wide police database. You may then be arrested in any of the countries of the EU. Arrests commonly also take place when people cross a border or when they are stopped by the police for unrelated reasons (such as driving offences, identity checks when checking in hotels etc.).
The police may contact you by telephoning your place of residence and asking you to attend a local police station. They may also choose to visit you at a known address and serve the EAW on you there. You may have a better chance of avoiding detention prior to the EAW hearing in the country that you are in (the executing Member State) if you comply with the police invitation to attend the police station.
N.B.: It is important that you seek legal advice as soon as you receive the police notification or are arrested. If you don’t understand and speak the language in which the police are speaking and conducting the proceedings, you have a right to ask for an interpreter (see section “What are my rights?”).
Will I go to court? What will the court do?
Shortly after your arrest, a judicial authority (e.g. a judge) will hear you to:
- confirm that you are the person named in the EAW;
- explain the reasons for your arrest under the EAW;
- explain that you may consent to be surrendered to the country which issued the EAW;
- set the date of a hearing in which you can argue why you should not be surrendered to the issuing Member State if you do not consent to be surrendered voluntarily;
- decide whether to keep you in in detention until the EAW hearing or whether to release you with or without additional obligations (e.g., a duty to periodically check in police station).
If you choose not to consent to the extradition, there will then be an EAW hearing at a later stage. At this hearing the judicial authority decides:
- whether the EAW has been issued correctly and is valid;
- whether the offence you have been charged with in the issuing Member State is also an offence in the executing Member State (and extraditable offence);
- whether there are any grounds to refuse your surrender (see section “Can a judge or government stop my surrender?”).
Can a judge or government stop my surrender?
It is the decision of the court (judge) in the executing Member State whether to execute the EAW and surrender you to the Member State that issued the EAW. Neither the government of the executing state, nor the government, including diplomatic representatives, of your state of nationality can influence the court’s decision or otherwise stop the execution of the EAW.
Although in practice it is very difficult to stop the execution of an EAW, a court must refuse to surrender you on the following grounds:
- you are not the person named in the EAW or the EAW has not been properly filled;
- you have already been convicted or acquitted by a court in another Member State in respect of the same offence; or
- you have not yet reached the age of criminal responsibility in the executing state.
In addition to these formal grounds, the judge must refuse to surrender you to the issuing Member State if there is a real risk that your basic human rights could be infringed if you are surrendered. For instance, a judge may look at whether there is a real risk that you will not receive a fair trial in the issuing Member State or whether the conditions in which you are detained risk being inhuman or degrading. If you have any special circumstances or concerns, for example, about how you will be treated in detention if you are surrendered, or any serious physical or mental health issues, you should tell your lawyer about them.
The court may, but is not obliged to refuse to surrender you on the following grounds if:
- the offence you are charged with in the issuing Member State is not a punishable offence in the executing Member State;
- you are prosecuted for the same act in the executing Member State or where proceedings against you for the same act have been finally concluded in any other EU Member State;
- you are convicted and have served your sentence for the same act in a country that is not an EU Member State;
- an unreasonable period of time has passed since the events concerned;
- the time limit for prosecuting or serving your sentence for the offence has expired;
- you are sought for the purpose of serving a prison sentence and the executing state agrees that you can serve the sentence in its prisons according to its laws; or
- you have been convicted in your absence without having been informed about the criminal proceedings and being able to instruct your lawyer to represent you.
Note that some countries may have additional grounds for refusing to execute an EAW. You should ask your lawyer to explain on what grounds you can resist extradition in your specific case.
N.B.: To prepare for this hearing you have the right to contact a lawyer also in the issuing Member State. They could help you and your lawyer to understand the case against you, understand whether the case in ready for trial in the issuing Member State and could request access to case materials in the issuing Member State on your behalf. They could also help understand whether there are any risks in relation to detention conditions or other important human rights concerns. Ask your lawyer or police officers in the executing country to help you to contact a lawyer in the country that issued the EAW.
Should I consent to my surrender?
Whether you should consent to your surrender depends on many factors and it is impossible to give a general answer to this question. You should always consult your lawyer before you make this decision. Ask your lawyer in the country you are in to also try to contact and get advice from a lawyer in the country requesting your surrender.
Can I appeal a decision to surrender me?
This will vary from country to country. Most countries allow at least one appeal against the execution of the EAW, but some do not. You should ask your lawyer to give you details about the appeal and surrender process.
When will the surrender take place?
The EAW was designed to speed up extradition and the legislation creating it has set very tight timeframes (from 10 days when you consent to extradition, to 60 or 90 days when you resist it). In practice, however, the period of time will depend on the complexity of your case and whether or not you challenge your extradition, on what grounds and whether you appeal the decision to execute the EAW.
The surrender will normally take place within 10 days after a final decision is made to extradite you.
If the court decided not to surrender me, am I free to travel now?
If the court of one EU Member State has decided not to execute the EAW and not to surrender you to the Member State that issued the EAW, you will not be subject to further arrest on the same EAW in that specific country.
However, the country that requested your extradition will still be able to seek your surrender from other EU Member States. Your name will still be on the Europe-wide police alert system, and you will be at risk of being arrested and extradited if you travel to another state within the EU.
Although there is no straightforward system to obtain the removal of an EAW, you should ask your lawyer for specific advice in your case.
What will happen after the surrender?
After the surrender, you will either have to stand trial for the offences you are accused of or serve your prison sentence in the issuing Member State.
If you are placed in detention pending trial after your transfer to the issuing Member State, you can request that a judge reviews the legality and necessity of your continued detention. If you are in detention, always ask to speak to a lawyer to decide on what options and procedures there are for you to apply for release. For more information see our guide on pre-trial detention.
Information for your lawyer
Although we are not representing individual suspects or accused persons in EAW proceedings, we may be able to help lawyers by providing materials that could be useful in EAW cases before national and regional courts. Therefore, feel free to contact us for advice.
Some materials you may find useful: