B. The European Arrest Warrant

1) What is a European Arrest Warrant?

The EAW is an instrument that confers extraterritorial effects within the EU to a national arrest warrant issued pursuant to national laws.

Council Framework Decision 2002/584/JHA on the European Arrest Warrant (“EAW”) and the surrender procedures between Member States (13th June 2002) defines an EAW as “a judicial decision issued by a Member State with a view to the arrest and surrender by another Member State of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order.”

The EAW system was implemented in order to facilitate, and in particular speed up, the procedure of surrender of those sought for trial or sentence from one country to another and with a view to furthering the objective of the EU becoming an area of freedom, security and justice.

Member States are required to execute EAWs on the basis of the principle of mutual recognition, and in accordance with the Framework Decision. There are a limited number of refusal grounds, listed in it. Nevertheless, the Framework Decision states explicitly that it shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 of the Treaty on European Union (“TEU”), to which see further under section E.3.

2) When is it used?

All 28 Member States may issue EAWs in order to secure the presence of a person for the purpose of conducting a criminal prosecution or executing a custodial sentence (or a detention order).

For a person wanted for a criminal prosecution, the offence in question must be punishable in the Issuing Member State with at least 12 months’ imprisonment. Where a person is wanted to serve a sentence, the sentence to be executed must be for at least four months imprisonment.

An EAW presupposes the existence of a valid national arrest warrant, which must be issued in compliance with applicable national laws. In the absence of a national arrest warrant issued separately from the EAW, the EAW is invalid and must be refused: Case C-241/15 Bob-Dogi (1st June 2016) at [59-67].

An underlying arrest warrant must not only exist: it must be issued by a “judicial authority” within the meaning of Articles 6(1) and 8(1) of the Framework Decision. Recent case law of the CJEU confirms that the term has an autonomous EU law meaning, and considered specific examples from some countries. Thus, the term does include a public prosecutor (Hungary), legally independent of the executive, when it takes a decision confirming (and adopting as its own) an arrest warrant issued by police (see Case C-453/16 PPU Özçelik (10th November 2016)). On the other hand, it does not include the police service (Sweden) or a Ministry of Justice (Lithuania) – even where it merely gives effect to a final court decision imposing a sentence – since these institutions do not offer the guarantees which underpin the mutual trust that forms the basis of “judicial” cooperation in criminal matters (see, respectively, Case C-452/16 PPU Poltorak (10th November 2016) and Case C-477/16 PPU Kovalkovas (10th November 2016)). It is important to study the information in Box (B) of the EAW to ascertain whether the authority that issued the EAW is a “judicial authority” in light of the objective criteria identified in this case law. You should consult with an ISL to obtain the necessary information (see Sections D.2 and H below).

An EAW may only be used in order to secure the presence of a person for the purposes of her/his own criminal prosecution. Hence it may not be used to obtain the presence of third persons (e.g. witnesses) even if they fail to appear in court.