Category: D. What should I do if I am retained or appointed in an EAW case in the Executing state?

D. What should I do if I am retained or appointed in an EAW case in the Executing State?

Requested persons are unlikely to be conversant with EAW procedure.  They are likely to be in a state of shock when you first meet them and many may be fearful of being returned to the Issuing State.

When acting for those subject to EAWs, it is necessary to consult with your client as soon as possible to take their instructions and advise on whether they should consent to or contest the warrant. It will be necessary to briefly explain the nature of the fast-track EAW scheme. It might be necessary to have an interpreter present. Your role is not to test and challenge the evidence against the person as if they were on trial; guilt and innocence are for the courts in the Issuing State to determine.  Your role is to ensure the proceedings are conducted fairly, and in accordance with the Framework Decision. This will entail considering the content of the EAW (see below) to ensure it is valid as well as considering any refusal grounds (see below section E and section F), and that the person is correctly identified. It is important to go through the allegations with the requested person, outline the potential grounds of refusal or postponement available to them and to advise the person whether they ought to consent to their surrender (see below section D.3.i on consent).

It is important for requested persons to be given a realistic assessment of their prospects of success in EAW cases: they should be informed of the difficulties inherent in contesting surrender, and that most requested persons are eventually surrendered.

In the first instance, your role also involves seeking bail and appropriate bail conditions (see section G.1).

D.1 Checking the Warrant Certificate/Schengen Entry

As soon as you have been instructed, obtain a copy of the EAW or entry in the Schengen Information System (“Schengen Entry” – see below section I) so that its content can be considered carefully to ensure that it contains all the information required to be a valid document. You should also obtain information about the circumstances surrounding the arrest of the requested person and whether they have any convictions or pending charges in your jurisdiction.

If the EAW or Schengen Entry is not in your national language, you should ask the court to provide a translation. The EAW must be translated into the official language or one of the official languages of the Executing State (Article 8(2) EAW FD). The same applies if the EAW is not in the language of the requested person (see Article 3(6) Directive 2010/64/EU[2]). The deadline for contesting an EAW should not start running until you have received the translation. It is imperative that you carefully consider the EAW or Schengen Entry.

Once you have a copy of the EAW or Schengen Entry in the necessary language(s), you should ensure that all the information required by Article 8 EAW FD is present.
The following information should be clearly present on the EAW or Schengen Entry:

(a) the identity and nationality of the requested person;

(b) the name, address, telephone and fax numbers and e-mail address of the issuing judicial authority;

(c) evidence of an enforceable judgment, an arrest warrant or any other enforceable judicial decision having the same effect, coming within the scope of Articles 1 and 2 EAW FD;

(d) the nature and legal classification of the offence, particularly in respect of Article 2 EAW FD;

(e) a description of the circumstances in which the offence was committed, including the time, place and degree of participation in the offence by the requested person;

(f) the penalty imposed, if there is a final judgment, or the prescribed scale of penalties for the offence under the law of the issuing Member State;

(g) if possible, other consequences of the offence.

If any of the above information is not present, and depending on the national laws of your country, the EAW may be invalid and you should make an application to the relevant national court for your client to be discharged, or, if this is refused, to request supplementary information from the Issuing State. The CJEU has confirmed that deficiencies in the information in the EAW may require the refusal of the EAW as, although Article 8 EAW FD is not a refusal ground per se, the refusal grounds are premised upon the basis of a valid EAW. In particular, Article 8(1)(c) refers to a national arrest warrant, distinct from the EAW. Therefore, where an EAW does not bear reference to the underlying national arrest warrant, the Executing authority must seek further information from the Issuing judicial authority. If, in light of such information, the Executing authority concludes that the EAW was issued in the absence of a national arrest warrant, it must refuse to give effect to the EAW (Case C-241/15 Bob-Dogi (1st June 2016) at [59-67]).



[2] Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010 on the right to interpretation and translation in criminal proceedings.

D.2 Contacting a lawyer in the Issuing State

You should contact a lawyer in the Issuing State (“ISL”) in almost every case. Very often your client will already have instructed a lawyer in the Issuing State, or one will have been appointed by the State. If this has not occurred, consider making contact with a lawyer registered with the ECBA in the Issuing State who is a criminal lawyer familiar with conducting EAW cases.[3]

An ISL can assist by:

  • Gaining access to, and consulting, the case files in the Issuing State;
  • Advising on the applicable law and procedure in the Issuing State;
  • Importantly, checking whether the underlying national warrant is valid (for example in relation to statute limitation);
  • Advising on whether the EAW can be withdrawn or substituted with less coercive measures;
  • Where an EAW is issued following the activation of a suspended sentence for failure to pay a fine or compensation, assisting the requested person to pay the money owing and apply for the sentence to be re-suspended; and
  • Obtaining expert evidence to support your client’s application to challenge the execution of the EAW.

In EAW proceedings for the purpose of executing a sentence, the national laws of the Executing State and of the Issuing State will determine whether and how the ISL might be funded by public legal aid systems. In EAW proceedings for criminal prosecution Article 5 Directive 2016/1919/EU states that the law of the Issuing State must grant financial legal aid to requested persons 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, for the purpose of such proceedings, in so far as legal aid is necessary to ensure effective access to justice. Financial legal aid in the Issuing State may be subject to a means test. See section H below for more details on the role of the ISL.



[3] Check the “Find a Lawyer” section on the ECBA website.

D.3 Consulting with the client

If your client does not speak your language, it is imperative that you ask the relevant national court to provide an interpreter (Article 11(2) EAW FD) and Article 2(7) Directive 2010/64/EU.  Ensure that your client has been provided with a copy of the EAW/Schengen Entry and that they understand the content. Ensure that your client has been given an EAW Letter of Rights pursuant to Annex II Directive 2012/13/EU.

Indicative model Letter of Rights for persons arrested on the basis of a European Arrest Warrant


Instructions should be taken from your client to ascertain whether the EAW can be challenged.

The following information should be obtained from your client as a minimum in order to assist with that decision:

  • Is your client the person sought by the EAW?
  • Has your client been tried in another country for the facts disclosed in the EAW or have they/are they being prosecuted for the same conduct in your country?
  • Was your client old enough at the time of the offence to be held criminally liable in your country for the conduct alleged in the EAW?
  • Has there been an amnesty for the conduct alleged in your country?
  • Does your client have any prosecutions pending in your country or are they currently serving a sentence of imprisonment in your country?
  • If the EAW is a conviction warrant, were they or a lawyer they appointed were present at the trial or notified of the trial date?
  • If the client is a national of your country, do they wish to apply to serve the sentence (if a conviction EAW) in your country?
  • Does your client have any concerns about returning to the Issuing State? For example, with regards to ensuring the fairness of their trial, prison condition, discrimination or other treatment, or separation from their family in the Executing State (see Section E.3).

You should also ask your client what their living and working arrangements are in your country, to assist with an application for bail.

i. Consent

The decision to consent requires careful consideration and the client needs to be advised fully, since a decision to consent implies waiving the right to oppose the execution of the EAW. It may also revoke the specialty rule (see below) and is often irrevocable. Consent is dealt with in Article 10 EAW FD.

Consenting to surrender will ordinarily result in your client being surrendered more quickly. Consent might therefore be adequate where there is no applicable refusal ground (see section E) and no possibility of having the EAW revoked or withdrawn in the Issuing State. However, given the risks, you should not usually advise your client to consent to surrender or waive their specialty protection without consulting with an ISL (see section H on the role of the ISL).

In order to consent to surrender, the decision must be formally recorded (in accordance with the laws of your country) and the individual must be legally represented.

ii. Voluntary return

Another option where there are no applicable refusal grounds and no possibility of the EAW being revoked or withdrawn is for the requested person to voluntarily return to the Issuing State. This can only occur if they are granted bail in the Executing State. A voluntary return might enable the requesting person to travel by his or her own means rather than under arrest and could therefore be less draconian. Nevertheless it should be pointed out that, since there might be an INTERPOL or a SIS II alert (see below section I), the person risks being detained in any EU Member State she might have to travel through. Should this happen, the EAW proceedings in the Executing State will be closed, and new EAW proceedings will be started in the state where the person has been arrested for the second time. A voluntary return will usually show willingness to engage in the criminal proceedings in the Issuing State. This may assist the requested person in the substantive proceedings in the Issuing State. For example, a court in the Issuing State may be more willing to grant alternatives to pre-trial detention to your client.

iii. Specialty Principle

The specialty rule is a guarantee that other outstanding allegations of criminal acts committed in the Issuing State prior to surrender may not be pursued against the requested person whilst they are in the Issuing State for the purposes of being prosecuted, sentenced or serving a sentence for the offence(s) contained within the EAW.

Specialty is therefore an important protection built into the EAW scheme and prevents a person being prosecuted in the Issuing State for conduct not set out in the EAW.

You should advise your client of their ‘specialty’ rights as they will be asked in court whether or not they ‘waive their specialty rights’, and in some member states, consenting to surrender may also include the waiver of specialty protection.

Specialty protection is afforded in accordance with Article 27 EAW FD. Article 27 sets out the circumstances when specialty protection is not afforded to requested persons once returned to the Issuing State.

Specialty does not apply when:

(a) the person having had an opportunity to leave the territory of the Member State to which he or she has been surrendered has not done so within 45 days of his or her final discharge, or has returned to that territory after leaving it;

(b) the offence is not punishable by a custodial sentence or detention order;

(c) the criminal proceedings do not give rise to the application of a measure restricting personal liberty;

(d) the person could be liable to a penalty or a measure not involving the deprivation of liberty, in particular a financial penalty or a measure in lieu thereof, even if the penalty or measure may give rise to a restriction of his or her personal liberty;

(e) the person consented to be surrendered, where appropriate at the same time as he or she renounced the specialty rule, in accordance with Article 13;

(f) the person, after his/her surrender, has expressly renounced entitlement to the specialty rule with regard to specific offences preceding his/her surrender;

(g) where the executing judicial authority which surrendered the person gives its consent in accordance with paragraph 4.

The categories are therefore very broad, particularly Article 27(3)(d), which may mean that protection will not be available to your client following surrender. In some jurisdictions, such as the UK, consenting to surrender does not result in the waiver of specialty. It is therefore important, for a client that wishes to consent to surrender, to be fully advised about whether such consent will result in specialty being waived. It may be that your client is not concerned because they have not been involved in other criminal offences. However, they may be unaware of past investigations carried out into their conduct, which may only come to light once they have been surrendered to the Issuing State.

If in doubt, specialty should not be waived. In any event, your client can always waive it at a later stage, even after surrender (Article 28(3)(f) EAW FD).

Once returned to the Issuing State, the authorities may nevertheless desire that specialty be waived. If the requested person does not waive specialty at this point, the Executing State can nevertheless consent to prosecution for further offences. If there is a request by the Issuing State to the Executing State for it to waive specialty, proceedings will follow the same rules as for the execution of an EAW, i.e. the same refusal grounds will apply (Article 27(4) EAW FD). The ISL should ensure that specialty is not violated in the Issuing State after surrender (see beneath Section H). If your client has decided to consent (or has been surrendered), and the Issuing State’s judicial authority requests permission to prosecute for another offence, you may have a role in opposing or challenging the grant of such permission before the Executing State judicial authority.