What is the European Arrest Warrant?
How do they differ from extraditions
Since 2004, the European Arrest Warrant (EAW) replaces the traditional extradition process within the European Union (EU). It is a much more agile, simplified and judicial procedure that begins when a judicial authority of a member state submits a request with the purpose of having another EU country proceed with the arrest and surrender of a person in order to be submitted to a criminal trial or to serve a sentence in the territory of the requesting state. It was created by the Framework-Decision adopted by the EU Council in 2002, which came into force in 2014. And, in Spain, it is regulated by Law 23/2014 of November 20.
How does it work?
It is carried out within the framework of the increasingly closer and more direct cooperation between judicial authorities of EU member countries. The authority issuing the order is the Judge or the Court hearing the case, and the competent authority to execute the order in Spanish territory is the Central Preliminary Examining Judge of the National High Court, or the Central Juvenile Court, in the case of minors.
When judicial authorities of a member country issue a European arrest warrant, it has legal validity in the entire EU territory, and its basic principle is reciprocity. This principle states that there must be a double incrimination, or double criminalization of the facts as a crime in both countries: the country of issuance and the country executing the warrant. An advantage with respect to extradition is that there are several exceptions for crimes such as terrorism, participation in a criminal organisation, sexual exploitation of minors, plus others listed in the law. The only requirement is a maximum penalty of 3 years imprisonment in the requesting country.
In which situations can they be issued?
These arrest warrants may be issued by a national judicial authority (Art. 37 Law 23/2014) in cases such as:
Prosecution of crimes for which the penalty or security measure involves deprivation of liberty of at least one year. Or in case of a minor, a measure of one year in a closed detention centre.
When facing a custodial sentence or security measure with liberty deprivation of at least four months, or to comply with a measure of closed detention for the same period of time in case of a minor.
And, an arrest warrant may also be issued for the remand in custody or preventive custody of a minor if the requirements of the Criminal Procedure Law and the Organic Law 5/2000 on the responsibility of minors, are met.
In which cases should the execution of an European Arrest Warrant (EAW) be denied?
If the EU country receiving the warrant has already passed a final convicting sentence or an acquittal regarding the same facts and the same person (ne bis in idem), or if the person has been judged for the same facts in a non-EU State, if the conviction has been executed, or is in process.
When the Spanish authorities are competent to prosecute such acts, or have passed a sentence and the crime or sanction has prescribed.
For formal reasons, if the application form is incomplete, erroneous, or does not exist.
If the person concerned enjoys immunity.
If the person concerned is not yet considered criminally responsible, because of his/her age, in the EU country requesting the execution of the warrant.
If the offence is covered by amnesty in the EU country to which the surrender of the offender is requested.
Finally, the arrest warrant may be refused, if it has been imposed on the basis of a sanction not defined in Law 23/2014 and does not exist in the Spanish legal system, or if it refers to acts committed in Spanish territory. And also if the decision has been issued in the absence of the person concerned, under certain conditions.
The advantages of this agreement, as opposed to extradition, are the strict time limits to carry out the proceedings and thus avoid the person being held in custody for a long period before a decision is taken. The State in which the person is arrested has up to 60 days to adopt a judicial decision and execute the European arrest warrant, if the person arrested does not agree with being transferred; and a maximum of 10 days, if the person agrees to be surrendered to the requesting country. The deadline can be extended for another 30 days if, for duly justified reasons, it is not possible to take a decision. On the other hand, the detained person must be surrendered within 10 days of the surrender decision, extendable for 10 more days if there are justifiable reasons. If the deadlines have passed and the issuing State has not received the person, he/she will be released, or corresponding measures will be applied, if this person has ongoing proceedings in the country where they currently are.