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European arrest warrant

Background

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 Member States.

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 is punishable by the law of the issuing Member State by a custodial sentence or a detention order for a maximum period of at least 12 months; 

or

  • the execution of a custodial sentence or detention order when the sentence passed is 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 on surrender. The country where the person is arrested has to take a final decision on the execution of the EAW within 10 days, where the requested person consents to his or her surrender. Otherwise, the final decision on the execution of the EAW should be taken within a period of 60 days after the arrest of the requested person. 
The requested person 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 EAW.

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 constitutes a criminal offence in both countries. The only requirement is that the offence needs to be punishable by a maximum period of at least 3 years of imprisonment in the issuing Member State.
For other offences, surrender may be subject to the condition that the act for which the EAW has been issued also constitutes an offence in the executing Member State.

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 the executing state undertakes to execute the sentence or detention order in accordance with its domestic law.

Guarantees

The country that executes the EAW may require guarantees that:

a. if the offence on the basis of which the EAW has been issued is punishable by custodial life sentence or life-time detention order, the requested person will have the right to ask for review after a certain period,
b. the requested person, being a national or resident of the executing state, is returned there to serve there the custodial sentence or detention order passed in the issuing Member State.

Limited grounds for refusal

The executing judicial authority can refuse to execute the EAW only if one of the mandatory or optional ground for refusal applies..
Mandatory grounds: 

  • the offense is covered by amnesty (the executing country could have prosecuted and the offence is covered by an amnesty in that country).
  • 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);

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 applies;
  • the person has been judged in absentia, without respect of certain conditions.

Proportionality check

An EAW should always be proportional to its aim The issuing judicial authorities should thus carry out a 'proportionality check' before deciding whether or not to issue an EAW. 

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.

Procedural rights

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.

They include

  • 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

On 17 November 2023, the European Commission released a new edition of the handbook on how to issue and execute a European Arrest Warrant (EAW). The handbook was last issued in 2017.

Aimed at European legal practitioners, the handbook sums up the vast experience gained over the past more than 20 years of using the EAW in the European Union. It also provides a series of tips and recommendations to help legal practitioners when they issue or execute EAWs and it helps them through every step of the surrender procedure. This revised 2023 version also reflects the rapidly evolving CJEU case law on the EAW and the changes to the SIS system. It was drawn up following meetings with experts in the Member States and agencies and has been thoroughly reviewed by the Commission’s Legal Service.

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 2022

In 2022 the judicial authorities of the 27 Member States issued a total of 13335 EAWs. A certain decrease can be noted from previous years where 14,789 EAWs were issued in 2021 and 15 938 in 2020.

However, as for previous years, it appears that some Member States do not always take the decision on whether or not to execute an EAW within the prescribed time limits. From the day of arrest, the surrender procedure took an average of 20.48 days when the requested person consented, and 57.29 days days when the person did not consent, compared to 20.14 days and 53.72 days days respectively in 2021. 

Following the trends identified in previous years, the most commonly identified categories were

  • theft offences and criminal damage (1 963 EAWs),
  • drug offences (1 711 EAWs) and
  • fraud and corruption (1 254 EAWs).

 

Guidelines on extradition

On 7 June 2022 the Commission published the guidelines on extradition to third states which summarise the case-law of the Court of Justice. They also take into account the experience that has been gained over the last five years in applying the Petruhhin mechanism across the EU, Iceland and Norway. 
In 2016, the Court of Justice of the European Union (Court of Justice) introduced in the Petruhhin judgment specific obligations for Member States that do not extradite their own nationals when they receive an extradition request from a third State for the prosecution of an EU citizen who is a national of another Member State and who has exercised his/her right to free movement under Article 21(1) of the Treaty on the Functioning of the European Union (TFEU). The Petruhhin judgment is the first case where the Court of Justice held that an EU Member State faced with an extradition request from a third State concerning a national of another EU Member State is obliged to initiate a consultation procedure with the Member State of nationality of the EU citizen (the Petruhhin mechanism), thus giving the latter the opportunity to prosecute its citizens by means of a European Arrest Warrant (EAW). The specific obligations imposed on Member States that do not extradite their own nationals find their rationale in ensuring non-discriminatory treatment between own nationals and other EU citizens. Member States’ obligations were further specified in subsequent case-law. Moreover, the Court of Justice extended the Petruhhin mechanism to Iceland and Norway.
The guidelines also establish a network of contact points to exchange swiftly information on any unlawful extradition request, in particular politically motivated extradition requests concerning EU citizens, third States’ nationals and stateless persons.

  • 7 JUNE 2022
Guidelines on Extradition to Third States
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Documents

Revised version of the European handbook on how to issue a European arrest warrant