If appropriate, you may also need to challenge the imposition of detention in the Executing State pending surrender. In most cases your client will want to receive bail instead of remaining detained. Nevertheless, since detention periods in the Executing State must be deducted from any prison sentence in the Issuing State (Article 26 EAW FD), you should evaluate together with your client and an ISL whether it is more suitable for the client to remain in detention (especially but not exclusively where the EAW is for the purposes of serving an enforceable prison sentence or where it is highly likely that they will be convicted in the Issuing State to a prison sentence). This will involve comparing prison conditions and treatment of people in detention.
Article 12 EAW FD states that a requested person may be kept in detention following their arrest, or provisionally released in accordance with the Executing State’s laws, providing all necessary steps are taken to prevent the person from absconding.
Making an application for detention not to be applied will be similar to making an application for pre-trial detention not to be applied in a national criminal case. In addition to the usual grounds based on national law, if you can persuade the court from the outset that a refusal ground may apply, that will facilitate the application of an alternative measure.
Article 6 CFR/article 5 ECHR on the right to liberty and security of the person can also be invoked. In general, to avoid being arbitrary, detention under Article 5(1)(f) ECHR must be carried out in good faith; it must be closely connected to the ground of detention relied on by the state; the place and conditions of detention should be appropriate; and the length of the detention should not exceed that reasonably required for the purpose pursued: A v UK App. No. 3455/05 (judgment 19th February 2009); see also Yoh-Ekale Mwanje v. Belgium App. No. 10486/10 (judgment 20th December 2011) at [117-119] and cases cited therein.
This can change during the course of proceedings, and can be re-visited if it is taking a long time for the surrender decision to be made. You should consider whether an application for the requested person’s release should be made initially, and then later on if a long time has passed.
Although the CJEU has held that there is no requirement to release a requested person simply because the time limits for a decision on surrender to be taken have expired, the continuing detention of the person must not be excessive in all the circumstances of the case and in accordance with article 6 CFR: Case C-237/15 PPU Lanigan (16th July 2015). This requires the Executing State court to assess the crime for which the person is requested; the likely sentence they will receive; and any risks posed. It must then balance this assessment against whether there has been due diligence in progressing the EAW request in both Issuing and Executing States, to decide if continuing detention is proportionate (Lanigan at  and ). The court must also consider if any measures should be attached to the provisional release to prevent the person absconding and ensure that they can be returned should a surrender decision be made (at ).
You should assist the court by making suggestions for alternative measures, such as surrender of the requested person’s passport or presenting themselves at a local police station, if the Executing State has these options in its laws. You should always consult the ISL in order to try to have the EAW revoked or substituted by another measure in the Issuing State.