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European arrest warrant
The European Union (EU) has adopted a framework decision on the European arrest warrant and the surrender procedures between Member States. The decision simplifies and speeds up the procedures, given that the whole political and administrative phase is replaced by a judicial mechanism.
The European arrest warrant adopted in 2002 replaces the extradition system by requiring each national judicial authority (the executing judicial authority) to recognise, ipso facto, and with a minimum of formalities, requests for the surrender of a person made by the judicial authority of another Member State (the issuing judicial authority). The framework decision entered into force on 1 January 2004 and replaced the existing texts in this area.
However, Member States remain at liberty to apply and conclude bilateral or multilateral agreements insofar as such agreements help to simplify or facilitate the surrender procedures further. The application of such agreements should in no case affect relations with Member States that are not parties to them.
The framework decision defines "European arrest warrant" as any judicial decision issued by a Member State with a view to the arrest or surrender by another Member State of a requested person, for the purposes of:
- conducting a criminal prosecution;
- executing a custodial sentence;
- executing a detention order.
The warrant applies in the following cases:
- where a final sentence of imprisonment or a detention order has been imposed for a period of at least four months;
- for offences punishable by imprisonment or a detention order for a maximum period of at least one year.
If they are punishable in the issuing Member State by a custodial sentence of at least three years, the following offences, among others, may give rise to surrender without verification of the double criminality of the act: terrorism, trafficking in human beings, corruption, participation in a criminal organisation, counterfeiting currency, murder, racism and xenophobia, rape, trafficking in stolen vehicles, and fraud, including that affecting the financial interests of the Communities.
For criminal acts other than those mentioned above, surrender may be subject to the condition that the act for which surrender is requested constitutes an offence under the law of the executing Member State (double criminality rule).
The European arrest warrant must contain information on the identity of the person concerned, the issuing judicial authority, the final judgment, the nature of the offence, the penalty, etc. (a specimen form is attached to the framework decision).
As a general rule, the issuing authority transmits the European arrest warrant directly to the executing judicial authority. Provision is made for cooperation with the Schengen Information System (SIS) and with Interpol. If the authority of the executing Member State is not known, the issuing Member State will receive assistance from the European Judicial Network.
All Member States may take necessary and proportionate coercive measures vis-à-vis requested persons. When an individual is arrested, he/she must be made aware of the contents of the arrest warrant and is entitled to the services of a lawyer and an interpreter.
In all cases, the executing authority may decide to keep the individual in custody or to release him/her subject to certain conditions.
Pending a decision, the executing authority (in accordance with national law) hears the person concerned. The executing judicial authority must take a final decision on execution of the European arrest warrant no later than 60 days after the arrest. It then immediately notifies the issuing authority of the decision taken.
Any period of detention arising from execution of the European arrest warrant must be deducted from the total period of deprivation of liberty imposed.
The arrested person may consent to his or her surrender. Consent may not be revoked and must be given voluntarily and in full knowledge of the consequences. In this specific case, the executing judicial authority must take a final decision on execution of the warrant within a period of ten days after consent has been given.
Grounds for refusal to execute a warrant and refusal to surrender
A Member State may refuse to execute a European arrest warrant if:
- final judgment has already been passed by a Member State upon the requested person in respect of the same offence (ne bis in idem principle);
- the offence is covered by an amnesty in the executing Member State;
- the person concerned may not be held criminally responsible by the executing State owing to his/her age.
In certain other circumstances (e.g. when criminal prosecution or punishment is statute-barred according to the law of the executing Member State or when a final judgment has been passed by a third State in respect of the same act), the executing Member State may refuse to execute the arrest warrant. It may also refuse to execute the warrant if the person concerned did not personally appear at the trial where the decision was rendered, unless the appropriate safeguards were taken. In all cases grounds for the refusal must be given.
On presentation of certain information (relating to the arrest warrant, the nature of the offence, the identity of the person concerned, etc.), each Member State must permit the transit through its territory of a requested person who is being surrendered.
The warrant is translated into the official language of the executing Member State and sent by any means capable of producing written records and allowing the executing Member State to establish its authenticity.
Practical, general and final provisions
Since 1 January 2004, extradition requests received by Member States have been dealt with in accordance with the national measures adopted to implement the framework decision.
The framework decision applies to Gibraltar.
|Act||Entry into force||Deadline for transposition in the Member States||Official Journal|
Framework Decision 2002/584/JHA
OJ L 190, 18.7.2002
|Amending act(s)||Entry into force||Deadline for transposition in the Member States||Official Journal|
Framework Decision 2009/299/JHA
OJ L 81, 27.3.2009