European Arrest Warrant (EAW)

Legal basis

The European Arrest Warrant (EAW; German: Europäischer Haftbefehl, EuHb) is based on Framework Decision 2002/584/JHA of the Council of the EU of 13 June 2002 and has been implemented in Germany by Sections 78–83h IRG. Within the EU it largely replaces the classic extradition proceedings and enables a simplified surrender between Member States.

How it works

An issuing Member State transmits the EAW on a standardized form. The executing state reviews whether grounds for refusal apply. Unlike classic extradition law, the requirement of dual criminality is dispensed with to a large extent: for the 32 list offenses under Article 2(2) of the Framework Decision — among them terrorism, human trafficking, corruption and cybercrime — the executing state waives the review of dual criminality, provided that the penalty in the issuing state is at least three years.

Mandatory grounds for refusal (Section 83 IRG)

Execution must be refused in the case of: a bar of amnesty, ne-bis-in-idem protection (double jeopardy), the age of criminal responsibility, and judgments in absentia without a guarantee of a retrial (Section 83(3) IRG).

Optional grounds for refusal (Section 83b IRG)

Execution may optionally be refused where the issuing state has unilateral territorial jurisdiction, where German criminal proceedings for the same offense are pending, where the enforcement of the sentence is about to become time-barred, or where the surrender of a state's own nationals for the enforcement of a sentence is made conditional on guarantees for their subsequent transfer to Germany.

Protection of fundamental rights

In its judgment on the European Arrest Warrant Act (2005) and in subsequent decisions, the Federal Constitutional Court (Bundesverfassungsgericht, BVerfG) made clear that, even in the case of the EAW, the essential core of Article 16 of the Basic Law (the prohibition on extraditing Germans) and absolute human-rights standards may not be undercut. Where there are systemic deficiencies in the issuing state — in particular as regards detention conditions or judicial independence — a suspension or refusal is possible.

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