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- Advising on whether the EAW can be withdrawn or substituted with less coercive measures;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.
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[3] Check the “Find a Lawyer” section on the ECBA website.