Defence lawyers can become involved in the representation of requested persons in either the Issuing State or the Executing State. Article 10 of Directive 2013/48/EU[1] provides for the right of access to a lawyer in an EAW case in both the Executing and Issuing Member States. On some occasions, where a third state is involved (for example, where there are competing EAWs or where the requested person has been tried on the same charges in a third state), it will be necessary for the requested person to have representation in multiple jurisdictions.

The role of the lawyer is to act in the best interests of his/her client. This will involve ensuring that the rights of the requested person are observed by, in appropriate cases:

• Persuading the Executing State not to surrender a requested person;
• Persuading the Issuing State to withdraw an EAW;
• Advising the client to consent to surrender, if that is in his/her best interests, taking into account both Executing and Issuing State’s laws;
• In cases where a person is surrendered, ensuring that the surrender procedure is carried out in accordance with the relevant law (for example, by ensuring that any time spent remanded in custody in the Executing State is taken into account in the Issuing State (see Art 26 of the Framework Decision) and that relevant time limits are observed).

In order to effectively participate in proceedings, you must therefore be familiar with the grounds for non-execution of an EAW that may apply according to the applicable laws of the relevant Member State (mandatory or optional), as well as with domestic laws concerning national arrest warrants in the Issuing State. This will usually involve contacting a lawyer in the Issuing State (see section H below on the role of the Issuing State Lawyer).

Article 5 Directive 2016/1919/EU ensures the right of a requested person to legal aid in the Executing State upon arrest pursuant to an EAW until they are surrendered, or until the decision not to surrender them becomes final. It also states that requested persons who are the subject of an EAW for the purpose of conducting a criminal prosecution and who exercise their right to appoint a lawyer in the Issuing State in accordance with Article 10(4) and (5) of Directive 2013/48/EU have the right to legal aid in the Issuing State for the purpose of such proceedings, in so far as legal aid is necessary to ensure effective access to justice. These rights may be subject to a financial means test. This directive must be implemented by 25 May 2019.

 

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[1] Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2013 on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty