Sin categoríaThe European arrest warrant (EAW): what it is and how it works

When a person wanted by the courts of one European Union country is found in another Member State, the slow classic extradition procedure is no longer used: the European arrest warrant, widely known as the EAW, comes into play. It is one of the most powerful instruments of judicial cooperation in criminal matters in Europe and, for the person subject to it, a decision with immediate consequences for their liberty. We explain what it is, what it is based on and how it is processed in Spain.

What the European arrest warrant is and what it is based on

The European arrest warrant is a judicial decision issued by one Member State so that another will arrest and surrender a person, either for the purposes of criminal prosecution or for the execution of a custodial sentence or detention order. It was created by Council Framework Decision 2002/584/JHA of 13 June 2002 and replaced the traditional extradition system between Union countries. In Spain it is applied through Law 23/2014 of 20 November on the mutual recognition of criminal judgments in the European Union. Its cornerstone is the principle of mutual recognition: States trust each other’s judicial systems and execute one another’s decisions almost automatically.

The key: mutual recognition and the end of the double-criminality check

In classic extradition, the requested State verifies that the facts are also an offence in its own territory, the so-called double criminality, and the final decision has a strong governmental component. The European arrest warrant changes the paradigm. For a list of thirty-two categories of especially serious offences, including terrorism, human trafficking, drug trafficking, corruption, money laundering and computer crime, and provided the maximum penalty is at least three years, the double-criminality check is abolished. Moreover, the decision is exclusively judicial: it is taken by judges, not governments, which brings legal certainty and speed.

In short: the EAW operates only between EU States, it is decided by judicial authorities, it abolishes double criminality for 32 serious offences and it is resolved within very short periods: ten days if the person consents and sixty if they do not.

Who processes it in Spain?

Spain acts both as an issuing State and as an executing State. When it receives a European arrest warrant, jurisdiction to execute it lies with the Central Investigating Courts and the Criminal Chamber of the Audiencia Nacional. Once the requested person is arrested, they are brought before the court and informed of the existence of the warrant, of its content and of the possibility of consenting to their surrender. They have the right to be assisted by a lawyer and, if needed, by an interpreter, essential safeguards for taking an informed decision.

Time limits and consent

One of the great advances of the European arrest warrant is its speed. If the person consents to surrender, the decision must be taken within the following ten days. If they do not consent, the ruling must be issued within sixty days of the arrest, exceptionally extendable by a further thirty. Consent, once given, is in principle irrevocable, so it should always be assessed with prior legal advice: waiving opposition speeds up the surrender, but closes the door to arguing the grounds for refusal.

Grounds for refusing surrender

Surrender is not automatic in every case. Law 23/2014 distinguishes between mandatory grounds for refusal, such as an amnesty in Spain, res judicata, that is, that the person has already been tried for the same facts, or being under the age of criminal responsibility, and optional grounds, which the court may or may not apply, such as pending proceedings in Spain or limitation under Spanish law. There are also specific guarantees: where the person was convicted in absentia, in cases of sentences or measures of indefinite duration, or where the requested person is a Spanish national or resident and asks to serve any eventual sentence in Spain.

The limits set by the CJEU

The Court of Justice of the European Union has qualified the automatism of the system. In the Aranyosi and Căldăraru cases it accepted that the executing authority may postpone or make surrender conditional where there is a real risk of inhuman or degrading treatment on account of detention conditions in the issuing country. And in the well-known line of cases on judicial independence it required verification, in the face of systemic rule-of-law deficiencies, of whether the person would be guaranteed a fair trial. These exceptions are interpreted strictly, but they show that mutual trust between States is neither blind nor unlimited.

EAW, extradition and Interpol red notices are not the same thing

It is important not to confuse figures that are often mixed up. The European arrest warrant operates only between Member States of the European Union. With third countries, extradition still applies, governed by international treaties and by the Passive Extradition Act, with governmental involvement in the final phase. And an INTERPOL red notice is not an arrest warrant: it is an international alert to locate a person and request their provisional arrest, but it does not oblige any country to detain, since each State decides under its own law. Understanding these differences is essential to defend properly anyone affected by any of them.

Related: arrest warrants and trial in absentia, defence before the Audiencia Nacional and INTERPOL red notices and diffusions.