The European Arrest Warrant (EAW)

The European Arrest Warrant (EAW) is a request by a judicial authority in one EU country for a person to be arrested in another and surrendered for prosecution, or for the execution of a prison sentence of more than four months or a detention order issued in the first country. The mechanism is based on the principle of mutual recognition of judicial decisions. It only applies between signatory Member States of the European Union and works through direct contacts between judicial authorities.

When a person is arrested on the basis of a European Arrest Warrant, the executing State (the one that executes the European Arrest Warrant and sends the person) decides on the provisional detention or release and on the final surrender of the person. If it decides to arrest the person, the authorities must respect the procedural rights of suspects or accused persons, such as the right to information, to have the assistance of a lawyer and an interpreter and to free legal assistance, in accordance with the legal system of the country in which they are detained.

The executing authority has three days to hold the hearing with the parties present and ten days to decide on the execution of the European Arrest Warrant. At the end of this period, if it has not taken a decision, it must release the person. The person must give consent to be extradited to the State issuing the European Arrest Warrant, otherwise there is a time limit to appeal against the European Arrest Warrant. Once consent is given, the executing state has ten days to send the person to the requesting state.

Principles of the European Arrest Warrant:

The European Arrest Warrant is based on the following principles:

  • The principle of mutual recognition. This principle means that requests for cooperation are dealt with directly between judicial authorities, without government intervention.
  • The principle of speciality. This principle prohibits a person surrendered for one crime from being tried for another crime. If the issuing state would like to try this person for another crime, then it must apply for a new European Arrest Warrant. If the person is already detained in Spain, pending the execution of a European Arrest Warrant, then the executing state will have 30 days to decide on this new Arrest Warrant and not 60 days.

However, the law provides the possibility for the person concerned to waive the principle of speciality, i.e. that once surrendered, he or she agrees to be tried for offenses other than those for which the European Arrest Warrant was issued.

The European Arrest Warrant abolishes the principle of double criminality in certain circumstances. This means that the possibility for the executing state to refuse to surrender a person because the acts do not constitute an offense under the law of the issuing state is eliminated.

Thus, the requirement of dual criminality does not apply in the case of crimes for which the Spanish Penal Code provides for a penalty or security measure of three years or more, and also when the alleged crime falls within certain categories of crimes, such as membership of a criminal organization, terrorism, illicit drug trafficking, organized or armed robbery, etc.

Refusal of EAW:

A country can only refuse to surrender a wanted person if one of the mandatory or optional grounds for refusal applies. The mandatory grounds include the following:

  • The person has already been tried for the same crime (non bis in idem).
  • The person has not reached the age of criminal responsibility in the executing country.
  • The executing country had jurisdiction to prosecute the crime and an amnesty has been decreed there.

On the other hand, the optional grounds include:

  • Absence of double criminality for crimes other than the 32 mentioned in Article 2(2) of the EAW Framework Decision.
  • Territorial jurisdiction.
  • Pending criminal proceedings in the executing country;
  • Statute of limitations.

Competent courts:

The Central Preliminary Examining Courts of the Audiencia Nacional will be competent for the initial processing of the European Arrest Warrant procedure and for the adoption of the surrender decision. The Criminal Division of the Audiencia Nacional will be competent to decide on appeals.