What is the European Arrest Warrant?
The European Arrest Warrant (EAW) is an instrument of judicial cooperation in criminal matters that has applied throughout the EU since 1 January 2004. It was introduced by Council Framework Decision 2002/584/JHA and replaced the classic extradition procedure between EU member states with a simplified surrender procedure.
The EAW is based on the principle of mutual recognition of judicial decisions. An arrest warrant issued by the judicial authority of one member state is, in principle, directly enforceable in all other member states — without the classic diplomatic granting procedure.
In Germany the EAW is implemented in Sections 78–83i IRG. The Higher Regional Court (Oberlandesgericht, OLG) at the place of arrest is responsible for the admissibility review; the General Public Prosecutor's Office takes on the function of the executing judicial authority.
The 32 list offenses
One of the key innovations of the EAW is the waiver of the review of dual criminality for 32 list offenses, provided the offense is punishable in the issuing state by a custodial sentence of at least three years. The list offenses of greatest practical importance include:
- Terrorism
- Trafficking in human beings
- Sexual exploitation of children and child pornography
- Illicit trafficking in drugs and psychotropic substances
- Intentional homicide, grievous bodily injury
- Money laundering
- Corruption and fraud
- Organized theft and robbery
For all other offenses, the review of dual criminality remains in place (Section 81 no. 4 IRG).
Course of EAW proceedings
The surrender procedure under the EAW is divided into three main phases — from the arrest, through the surrender review by the Higher Regional Court, to the actual surrender:
Arrest and running of deadlines
After the arrest, the requested person must be brought before the competent judge without delay. The Higher Regional Court decides on whether detention is upheld. The deadlines are considerably shorter than in the classic extradition procedure: if the requested person consents to surrender, the decision is to be issued within 10 days. Without consent, the deadline is 60 days, extendable to 90 days.
Admissibility review by the Higher Regional Court
The Higher Regional Court reviews the formal requirements of the EAW and the existence of any bars to granting under Sections 83, 83a, 83b IRG. Here too, the decision is unappealable — particular care in preparing the defense is therefore essential.
Bars and grounds for refusal
Despite the principle of mutual recognition, there are numerous grounds on which surrender may or must be refused:
Mandatory grounds for refusal (Section 83 IRG)
- Ne bis in idem (double jeopardy) — the requested person has already been finally convicted or acquitted of the same offense in a member state.
- Lack of criminal responsibility by reason of age — the requested person was below the age of criminal responsibility under German law at the time of the offense.
- Amnesty — the offense is covered by an amnesty in the executing state, where that state would itself have had jurisdiction.
Optional grounds for refusal (Section 83b IRG)
- Lack of dual criminality for non-list offenses.
- Pending criminal proceedings in Germany for the same offense.
- Statute of limitations under German law.
- Territorial principle — the offense was committed wholly or partly in Germany.
- Judgments in absentia without a sufficient guarantee of a retrial (Section 83 no. 3 IRG).
Protection of German citizens (Article 16(2) of the Basic Law)
The surrender of German citizens to EU member states is constitutionally permissible only under certain conditions. In its landmark decision of 18 July 2005 (2 BvR 2236/04), the Federal Constitutional Court declared the first act implementing the EAW void. The 2006 reform act provides in Section 80 IRG that the surrender of a German citizen is permissible only if the offense has a significant connection to the requesting state and the return of the person to Germany to serve any sentence is guaranteed.
Fundamental-rights limits of the EAW
The case law of the European Court of Justice (ECJ) and the Federal Constitutional Court has set important fundamental-rights guardrails:
- Detention conditions incompatible with human dignity — under the ECJ's judgment in the joined cases Aranyosi and Căldăraru (C-404/15 and C-659/15 PPU), the executing court must suspend surrender where there is a real risk of inhuman treatment.
- Systemic rule-of-law deficiencies — in the case LM (C-216/18 PPU), the ECJ held that, where there are systemic deficiencies in the independence of the judiciary, an individual assessment must be carried out.
- Disproportionately long pre-trial detention — excessively long detention in the issuing state can stand in the way of a surrender.
- Identity review under the Basic Law — the Federal Constitutional Court reserves the right to review surrenders against the standard of the inviolable principles of Article 79(3) of the Basic Law (identity review).
Constitutional complaint against surrender
There is no ordinary remedy against the admissibility decision of the Higher Regional Court. A constitutional complaint to the Federal Constitutional Court (Article 93(1) no. 4a of the Basic Law) is therefore often the only remaining means of defense. I have successfully lodged numerous constitutional complaints in EAW proceedings — regularly combined with urgent applications for an interim injunction under Section 32 BVerfGG, in order to stop the imminent surrender at the last minute.
My defense
Defending against a European Arrest Warrant requires speed, specialist knowledge and experience. For over two decades I have defended against EAW proceedings before all German Higher Regional Courts. I know the procedural paths, the decision-making practice and the most effective defense strategies — from suspension of detention, through the grounds for refusal, to the constitutional complaint. My law firm is reachable around the clock.