The European arrest warrant ("EAW") is a simplified cross-border judicial surrender procedure – for the purpose of prosecution or executing a custodial sentence or detention order.
The Framework Decision on EAW has been in force since 1 January 2004 in all Member States.
It has replaced the lengthy extradition procedures that used to exist between EU countries.
The aim of the EAW is to ensure that open borders and free movement in the Union are not exploited by those seeking to evade justice. It is the most successful instrument of judicial cooperation in criminal matters in the Union.
For example, the EAW was applied in the following cases:
a terrorist involved in the Paris attacks caught in Belgium,
an attacker of the Brussels Jewish Museum arrested in France,
a failed London bomber caught in Italy,
a German serial killer tracked down in Spain,
a suspected drug smuggler from Malta surrendered by the UK,
a gang of armed robbers sought by Italy whose members were arrested in 6 different EU countries.
How does it work?
An EAW issued by one EU country's judicial authority is valid in the entire territory of the EU. The mechanism is based on the principle of mutual recognition and therefore operates via direct contacts between judicial authorities.
An EAW may be issued by a national judicial authority for
- prosecuting a person when the offence for which the person is being prosecuted has a maximum penalty of at least 1 year of prison;
- execution of a custodial sentence or detention order when the sought person has been sentenced to a prison term of at least 4 months.
Strict time limits
One of the main advantages of the EAW are the strict time limits it imposes. This allows for swift procedures and avoids that a person is kept in custody for too long pending a decision. The country where the person is arrested has to take a final decision on the execution of the European arrest warrant within 60 days after the arrest of the person if the person does not consent to the surrender. If the person consents to the surrender, the surrender decision must be taken within 10 days.
The person requested must be surrendered as soon as possible on a date agreed between the authorities concerned, and no later than 10 days after the final decision on the execution of the European arrest warrant.
Double criminality check – no longer required for 32 categories of offences
Another important advantage of the EAW compared to extradition proceedings is that for 32 categories of offences, there is no verification on whether the act is a criminal offence in both countries. The only requirement is that it be punishable by a maximum period of at least 3 years of imprisonment in the issuing country.
For other offences, surrender may be subject to the condition that the act also constitutes an offence in the executing country.
No political involvement
Decisions on EAW are made by judicial authorities alone, without political considerations. The executive may not interfere in the decision of the judicial authority. The judicial procedure also ensures that the rights of the person sought are protected.
Surrender of nationals
EU countries can no longer refuse to surrender their own nationals, unless they take over the execution of the prison sentence against the wanted person.
The country that executes the EAW may require guarantees that:
a. after a certain period the person will have the right to ask for review, if the punishment imposed is a life sentence.
b. the sought person can serve any resulting prison time in the executing country, if he or she is a national or habitual resident of that country.
Limited grounds for refusal
A country can refuse to surrender the requested person only if a grounds for refusal applies.
The Framework Decision on EAW provides mandatory and optional grounds.
- the person has already been judged for the same offence (ne bis in idem);
- the person is a minor (the person has not reached the age of criminal responsibility in the executing country);
- the offense is covered by amnesty (the executing country could have prosecuted and the offence is covered by an amnesty in that country).
Optional grounds, when transposed by Member States- such as:
- lack of double criminality for offences other than the 32 listed in the Framework Decision on EAW;
- there is a pending criminal procedure in the executing country for the same acts;
- statute of limitations apply;
- the person has been judged in absentia, without respect of certain conditions.
The issuing judicial authorities in the EU country issuing the EAW should carry out a 'proportionality check'.
An EAW should always be proportional to its aim. Even where the circumstances of the case fall within the scope of Article 2(1) of the Framework Decision on EAW, issuing judicial authorities are advised to consider whether issuing an EAW is justified in a particular case.
Considering the severe consequences that the execution of an EAW has on the requested person's liberty and the restrictions of free movement, the issuing judicial authorities should consider all relevant factors in order to determine whether issuing an EAW is justified.
In particular, the following factors should be taken into account:
(a) the seriousness of the offence (for example, the harm or danger it has caused);
(b) the likely penalty imposed if the person is found guilty of the alleged offence (for example, whether it would be a custodial sentence);
(c) the likelihood of detention of the person in the issuing Member State after surrender;
(d) the interests of the victims of the offence.
The European Union adopted specific rules that guarantee the procedural rights of persons suspected and accused in criminal proceedings and persons sought under an EAW. These rules build on the right to a fair trial and the rights of defence.
- the right to interpretation and translation
- the right to information
- the right of access to a lawyer and the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty;
- the right to legal aid
- procedural safeguards for children
Persons subject to an EAW who do not speak or understand the language of the proceedings have the right to an interpreter and to a written translation of the EAW. They should be informed by a written document about their procedural rights ("Letter of Rights"). They have the right of access to a lawyer in the executing State and they may appoint a lawyer in the issuing State. Moreover, they have a right to legal aid in the executing State and in the issuing State, in so far as it is necessary to ensure effective access to justice.
Specific safeguards are provided for children subject to an EAW.
Handbook on how to issue and execute an EAW
In 2017 the European Commission updated a handbook on how to issue and execute an EAW, to facilitate and simplify the daily work of the competent judicial authorities. The handbook provides guidance on the procedural steps for issuing and executing an EAW.
The 4th Implementation Report
In July 2020, the Commission adopted its 4th Implementation Report on the EAW. The report assesses how the Framework Decision on EAW as amended by Council Framework Decision 2009/299/JHA (trials in absentia) has been transposed in all 27 Member States bound by it. The assessment is based primarily on the analysis of the national measures transposing the Framework Decision on EAW that were notified to the General Secretariat of the Council and the Commission in accordance with Article 34(2) of the Framework Decision on EAW.
The general assessment demonstrates a rather satisfactory level of implementation of the Framework Decision on EAW. However, the assessment of national implementing measures also revealed more serious issues of compliance. This concerns in particular additional grounds for non-execution and non-observation of time limits.
EAW Statistics 2019
In 2019, 20 226 EAWs were issued in the 27 Member States. In comparison, in 2018, the 27 Member States issued 17 471 EAWs. At first glance, it seems that a considerable increase occurred between 2018 and 2019 (an increase of 2 755 EAWs). However, the substantial increase can be explained by the reissuance of 2 379 EAWs by Germany. These 2 379 EAWs were reissued after the OG and PI judgment originally issued by German public prosecutors, which had not qualified as an issuing judicial authority under Article 6(1) of the Framework Decision.
As in previous years, the most commonly identified categories were theft offences and criminal damage (2 737 EAWs), drug offences (1 873 EAWs) and fraud and corruption offences (1 846 EAWs).
From the arrest to the decision on surrender, it took on average 17 days when the requested persons consented to their surrender and 56 days when the requested persons did not consent.