The European Arrest Warrant: What Affected Persons Need to Know

The European Arrest Warrant (EAW) is one of the key instruments of judicial cooperation within the European Union. It enables the swift and comparatively uncomplicated surrender of persons who are wanted in one EU Member State to another.

For those affected, the situation is often shocking: suddenly the police are at the door, or one learns at a border crossing that an arrest warrant has been issued. This article provides a clear and comprehensible overview of what a European Arrest Warrant is, how the surrender proceedings work in Austria, and how one can effectively defend against surrender.

1. What is a European Arrest Warrant?

The European Arrest Warrant is an EU instrument for the rapid arrest and surrender of persons between Member States. In Austria, it is governed by the EU-JZG (EU Judicial Cooperation Act).

It is used for:

• Criminal prosecution
• Enforcement of a custodial sentence or preventive measure

The European Arrest Warrant replaces the former extradition procedure and is significantly faster and more strictly regulated. For the person concerned, this means that reaction time is short and professional legal assistance is crucial.

2. Requirements for Execution

2.1. Criminal prosecution

Surrender for the purpose of criminal prosecution is admissible if the act is punishable under the law of the issuing state by a custodial sentence of at least one year and if the alleged offence also constitutes a criminal offence under Austrian law (dual criminality).

However, it should be noted that in the case of so-called “catalogue offences” (e.g. fraud, corruption), the requirement of dual criminality does not apply if the offence is punishable in the issuing state by a custodial sentence of at least three years. Given the very broad scope of catalogue offences, the examination of dual criminality is, in practice, often significantly limited.

Furthermore, surrender must not be precluded by a mandatory ground for refusal.

Surrender is inadmissible if the Austrian authorities are competent to prosecute, in particular if:

• the offence was committed in Austria, specifically if it was committed within the national territory or on board Austrian ships or aircraft; this also applies where the acts are not subject to judicial criminal liability under Austrian law, or

• criminal proceedings concerning the same offence are pending in Austria, or
• a final and binding decision concerning the same offence has already been rendered in Austria, or
• Austrian authorities have jurisdiction, but prosecution of the offence is already time-barred under Austrian law, or
• there is a risk that surrender would violate fundamental human rights of the person concerned (e.g. due to inhuman or degrading detention conditions).

The surrender of Austrian nationals for the purpose of criminal prosecution is only permissible to a very limited extent, as the commission of a criminal offence by an Austrian national generally establishes jurisdiction of the Austrian authorities, regardless of whether the offence was committed in Austria or abroad. Furthermore, surrender of an Austrian national is generally only admissible if the issuing state guarantees that, following a conviction, the person concerned will be returned to Austria for the enforcement of the imposed sentence.

2.2. 2.2 Enforcement of a Sentence

Surrender for the purpose of enforcement of a sentence is admissible if at least four months of a custodial sentence remain to be served and the conviction relates to an act that also constitutes a criminal offence under Austrian law (dual criminality). However, in the case of a so-called catalogue offence, the requirement of dual criminality does not apply.

The surrender of a person who was convicted in absentia is only possible under restricted conditions.

Furthermore, surrender of the person concerned for the purpose of enforcement of a sentence is inadmissible if there is a risk that surrender would violate fundamental human rights of the person concerned (e.g. due to inhuman or degrading detention conditions).

The surrender of a person holding Austrian citizenship for the purpose of enforcement of a sentence is generally inadmissible.

3. Surrender Proceedings in Austria

3.1. 3.1 Arrest on the basis of a European Arrest Warrant

If the person concerned is located in Austria, immediate arrest will follow. The authorities must inform the person of the following rights:

• the right to legal counsel
• the right to an interpreter
• the right to access the file or to be informed of the allegations

3.2. Appearance before the Regional Court

Within a short period of time, the person is brought before the competent surrender judge. The court examines:

• the formal requirements of the European Arrest Warrant (proper completion and completeness)
• whether a surrender obstacle exists
• whether surrender would raise concerns under fundamental rights

Important: During the court hearing, the person concerned is asked whether they consent to a simplified surrender procedure. If consent is given, the court no longer examines whether the legal requirements are met. Affected persons should therefore never consent to simplified surrender.

Furthermore, in surrender proceedings it is also possible to submit a prepared written statement. This has the advantage that all arguments can be presented precisely and in a clearly structured manner, together with the relevant evidence.

3.3 Court decision

As a rule, the court must decide within 30 days whether surrender is permissible. Both the person concerned and the public prosecutor may lodge an appeal against the first-instance decision with the Higher Regional Court. The Higher Regional Court must also decide on the appeal within 30 days.

If surrender is finally declared permissible, it must generally take place within 10 days.

Conclusion

The European Arrest Warrant under the EU-JZG is a powerful instrument that often catches those affected unprepared. However, surrender is not automatic. With a targeted defence strategy, well-founded objections and swift legal assistance, surrender can be prevented.

Anyone who fears that a European Arrest Warrant may have been issued against them should immediately contact a criminal defence lawyer specialising in this area. Given the short duration of the proceedings, proactive preparation is highly advisable wherever possible. Ideally, relevant documents should be provided to defence counsel before a European Arrest Warrant is issued.

In addition, a criminal defence lawyer may succeed in avoiding the imposition of surrender detention, which can significantly facilitate further defence efforts.

In any event, rapid and strategic defence is essential.

Are you affected by a European Arrest Warrant?

Our firm can assist you throughout the entire surrender procedure – swiftly, discreetly and with experience in international criminal law.