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.
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be adequate where there is no applicable refusal ground (see section E) and no possibility of having the EAW revoked or withdrawn in the Issuing State.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.