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]).
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[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.