A European Arrest Warrant catches most of those affected unprepared, often at a check or at the border. Anyone sought in Germany on a warrant from abroad should know who decides on surrender and what matters in the first days. This article gives an orientation and does not replace advice in the individual case.
What the European Arrest Warrant sets in motion
Between EU states, the European Arrest Warrant replaces the former, lengthy extradition procedure with a faster system of mutual recognition. One member state asks another to arrest and surrender a wanted person, either for prosecution or to enforce a sentence already imposed. For a number of serious categories of offence, it is no longer examined whether the act would also be punishable in the executing state, which speeds the procedure up further. For the person concerned this means the time to mount a defence is short.
Who decides on surrender in Germany
In Germany the European Arrest Warrant is implemented through the Act on International Legal Assistance in Criminal Matters. The Higher Regional Court decides on the admissibility of the surrender, while the General Public Prosecutor's Office runs the procedure and prepares the decision. The decision is therefore not taken where the warrant comes from, but at a German court, and this is exactly where the defence starts. It can argue, for instance, that grounds for refusal exist, that double criminality is missing or that the rule of speciality would be breached, under which the person may only be prosecuted for the act for which they are surrendered.
The process after the arrest
After the arrest, the person concerned is brought before a court without delay, which decides on extradition detention during the procedure. Short deadlines run from that moment: if the person consents to the surrender, it should as a rule take place within a few days, otherwise the case must be decided within sixty days of the arrest, with a possible extension of a further thirty days. Those who know the process can work early to make their own view heard, rather than merely reacting. For this reason a defence lawyer should be involved as early as possible.
Consent or objection: a decision with consequences
Consenting to the simplified surrender speeds up the procedure considerably but largely waives any judicial examination, and the consent once given can practically not be withdrawn. Often the protection of speciality is waived at the same time, which can have far reaching consequences. Whether consent makes sense in the individual case or whether grounds speak against surrender is something no one should decide without legal examination, because this course cannot be changed later.
When Germany and Spain are involved
If the warrant comes from Spain or the person is to be surrendered there, the German and Spanish sides should work together, because often the actual case is only decided after surrender in Spain. The defence in Germany is handled by our partner Barba & Partner in Munich, the Spanish side by Fukuro Legal, when needed through the 24 hour criminal defence in Spain. This ensures the defence in the destination country is prepared before the surrender even takes place.
Common questions
Can I prevent the surrender?
Possibly. Whether grounds speak against a surrender depends on the individual case and should be examined by a lawyer. A premature consent should never be given without advice, because it cannot be withdrawn.
Am I detained immediately?
Not necessarily. The court decides on extradition detention during the procedure, and here too the defence can influence early whether and under which conditions detention is ordered.
What can families do?
Stay calm, record the key details (place, time, competent authority) and organise legal help quickly. You can reach us through the Fukuro Legal contact page; for the German side, Barba & Partner in Munich is available.
