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 78–83j IRG (Part Eight of the 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)

Extradition is inadmissible under Section 83(1) of the IRG if the person sought has already been finally judged for the same offense in another Member State (ne bis in idem), if he or she was not criminally responsible at the time of the offense under Section 19 of the German Criminal Code — that is, not yet 14 years old — in the case of certain judgments rendered in absentia without a guarantee of a new trial (Section 83(1) no. 3, subsections (2)–(4) of the IRG), and where the person faces a sentence of life imprisonment without a possibility of review after no more than 20 years. An amnesty in the executing state likewise constitutes a mandatory bar to surrender under Article 3(1) of Framework Decision 2002/584/JHA (in Germany, Section 9 no. 2 of the IRG).

Optional grounds for refusal (Section 83b IRG)

Under Section 83b(1) of the IRG, approval may be refused in particular where German criminal proceedings for the same offense are already being conducted against the person sought, where the opening of proceedings has been declined or proceedings already opened have been discontinued, where priority is to be given to an extradition request from a third country, or where reciprocity is not assured. Section 83b(2) of the IRG additionally protects foreign nationals habitually resident in Germany. The guarantee of return in the case of the surrender of German nationals for prosecution, as well as the consent requirement for surrender for the enforcement of a sentence, is governed by Section 80 of the IRG; further optional grounds, such as the territoriality principle and the statute of limitations, follow from Article 4 of Framework Decision 2002/584/JHA.

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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