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European arrest warrant: Support in Germany

Your lawyer in Germany if you are affected by a European arrest warrant: The European Union has set itself the goal of creating a constitutional foundation that facilitates the smooth exchange and cooperation between its member states.

An outstanding example of this integration process is the European Arrest Warrant (EAW), which has revolutionized the extradition procedure between EU member states. Since its introduction in 2002, it has served as a key instrument in combating cross-border crime and ensuring effective prosecution. But what exactly is the European arrest warrant, how does it work, and how do you defend yourself as a victim in Germany?

Your criminal defence lawyer in Germany: Our law firm specializes in criminal defence in Germany and offers you lawyers available at short notice. Especially if someone has been arrested and is to be extradited from Germany – or is to be extradited to Germany, we are available for you immediately! We work seamlessly with colleagues abroad.

European arrest warrant: Origin and legal basis

The European arrest warrant is based on the EU Council Framework Decision 2002/584/JHA. It was created in response to the increasing mobility of criminals within Europe and is intended to replace the inefficient and often lengthy extradition procedures of the past.

In contrast to traditional extradition law, which was heavily dependent on political considerations, the EAW is based on the principle of mutual recognition of judicial decisions. This means that a decision issued in one EU member state is implemented in another member state largely unbureaucratically and without additional ministerial approval.

Scope of application and procedure

The European arrest warrant can be issued for two main reasons: for criminal prosecution or to enforce a custodial sentence that has already been imposed. The underlying offense in the issuing state must be punishable by a minimum sentence of one year or – if a sentence has already been passed – there must be a remaining period of imprisonment of at least four months.

Particularly noteworthy is the abolition of the requirement of double criminality for certain serious offenses. For a total of 32 listed offenses, including terrorism, human trafficking and corruption, there is no longer an obligation to check whether the offense would also be punishable in the requested state. This speeds up proceedings considerably and avoids delays caused by different national criminal laws.

The procedure itself is greatly simplified. An EU member state issues the arrest warrant and forwards it directly to the state concerned. There, the accused is arrested and brought before a competent court, which examines the admissibility of the surrender. The maximum period for the decision is usually 60 days, although an extension of a further 30 days is possible in special circumstances. If the arrested person has consented to extradition, the procedure can be shortened to ten days.

Principle of specialty

Scope of prosecution in the event of extradition

The principle of speciality: A particularly important aspect of the European arrest warrant is the principle of speciality. This states that a person who has been extradited on the basis of a European arrest warrant may only be prosecuted and punished in the requesting state for the offense on the basis of which he or she was surrendered by the executing state.

Prosecution for other, previously committed offenses is only permitted if the executing state has given its consent or if the person concerned had the opportunity to leave the country voluntarily after their extradition but did not make use of it. The principle of specialty protects against an extension of criminal prosecution and ensures that extradition is not misused for another offence that was not originally covered. Defense lawyers should carefully examine whether the principle has been complied with, as inadmissible prosecution is a clear violation of European law.

European arrest warrant – constitutional concerns and grounds for refusal

Despite the obvious advantages, the European arrest warrant is not without controversy. In particular, issues relating to the protection of fundamental rights and the rule of law are a constant source of debate. One particularly problematic issue is the tension between the efficiency of the EAW and the individual fundamental rights of the persons concerned.

In 2005, the Federal Constitutional Court declared the first German transposition law null and void due to insufficient protection of fundamental rights. However, German law now provides for numerous grounds for rejection that are intended to guarantee the protection of fundamental rights. These include the prohibition of double jeopardy (ne bis in idem), the protection clause for persons resident in Germany and inhumane detention conditions in the requesting state.

Another critical point is sentencing in absentia: In some cases, EU states demand the extradition of persons convicted in absentia. Although this is generally possible under EU law, it is only possible if it is ensured that the convicted person can apply for a retrial.

In addition, detention conditions in issuing member states have established themselves as a major reason for refusal. The European Court of Justice (ECJ) has ruled that an EAW may not be enforced if there are serious and substantiated doubts about the humane treatment of the person concerned. National courts must carry out a two-stage examination in individual cases: First, it must be determined whether there are systemic or widespread deficiencies in the penitentiary system in a Member State. If this is the case, it must be further examined whether the defendant concerned could suffer a real risk of inhuman or degrading treatment under the specific conditions of detention in accordance with Art. 4 of the EU Charter of Fundamental Rights (CFR) or Art. 3 of the European Convention on Human Rights (ECHR). This case law significantly strengthens the defense options, especially if the enforcement court is presented with convincing evidence of critical detention conditions.

Influence of ECJ case law on the European arrest warrant

The ECJ has outlined the European arrest warrant several times in its case law. In the Aranyosi/Căldăraru case, the ECJ ruled that detention conditions in the issuing Member State can justify a refusal of extradition if systemic deficiencies are proven.

In another landmark decision on the independence of public prosecutors, the ECJ clarified that the fact that public prosecutors are bound by instructions can be an obstacle to issuing an EAW, as this impairs judicial independence. This had a particular impact on arrest warrants from Germany, as public prosecutor’s offices there are subject to the instructions of the Ministry of Justice.

The case law on the two-stage nature of the EAW procedure has also been further developed. For example, the ECJ ruled that an EAW can only be enforced if it is based on a national arrest warrant. This puts a stop to purely administrative proceedings without judicial control.


European arrest warrant: Defense options and the role of the defense lawyer

Criminal defense lawyers play a crucial role in the context of a European arrest warrant. They can be active in several areas:

  • Checking the legality of the arrest warrant: An experienced defense lawyer will check the formal and material requirements of the arrest warrant. If there are deficiencies, this can lead to the EAW being rejected.
  • Application of grounds for refusal: The defense can prove that one of the grounds for refusal provided for in the EU Directive applies, such as double jeopardy or inhumane detention conditions.
  • Defense in judgments in absentia: If the client was convicted in absentia, it must be ensured that he has the right to a new trial. If this is not the case, the EAW can be rejected.
  • Cooperation with colleagues in the issuing state: Close cooperation with a defense lawyer in the country that issued the arrest warrant can lead to alternative legal avenues being pursued or even to the revocation of the EAW.
  • Protection against poor treatment after extradition: If it is to be expected that the accused will be detained in inhumane conditions, defense lawyers can present this to the court and obtain a refusal of extradition.
  • Representation in the event of extradition detention: In the event of imminent extradition detention, an experienced criminal defense lawyer can try to avert or at least facilitate this by means of suitable motions for evidence and procedural motions.
  • Request for execution of the sentence: If extradition is unavoidable, the defence counsel may request that the sentence be executed in the prosecuted person’s home country in order to ensure better rehabilitation and humane prison conditions.
Europäischer Haftbefehl: Rechtsanwalt Ferner verteidigt bei einem Europäischen Haftbefehl

The defense against an EAW requires sound legal knowledge, effective cooperation between the lawyers involved and a targeted approach to safeguard the rights of the person concerned. The case law of the ECJ shows that the protection of individual rights is playing an increasingly important role and that more and more aspects of the EAW procedure are subject to judicial review.

Two defense lawyers are the basis

In the case of a European arrest warrant, close cooperation between two lawyers, one in the extraditing state and one in the requesting state, is crucial.

The defense lawyer in the extraditing country can review the legality of the arrest warrant, assert possible grounds for refusal and take action against surrender. At the same time, it is essential that a lawyer in the requesting state is already active in parallel in order to influence the proceedings on the ground, examine the conditions of detention and, if necessary, obtain more lenient treatment or a transfer of proceedings.

Without this cooperation, there is a risk that defense strategies will not be optimally coordinated, relevant arguments will be presented too late or the situation for the person concerned will worsen after extradition. A coordinated approach therefore significantly increases the chances of success of an effective defense and can make a decisive contribution to preventing unlawful or disproportionate extradition.

Outlook: European arrest warrant

The European arrest warrant represents significant progress in European criminal prosecution and shows how closely the EU member states cooperate in the area of internal security. At the same time, it remains a challenge for the protection of individual fundamental rights and the balance between national sovereignty and the European legal order.

German Lawyer Jens Ferner (Criminal Defense & IT-Law)
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