European Arrest Warrant and extradition: what those with a connection to Austria need to know

The European Arrest Warrant is a judicial decision of a member state aimed at obtaining the arrest and surrender of a person by another member state for the purpose of prosecution or the enforcement of a custodial sentence. It is based on Framework Decision 2002/584/JHA and is transposed in Austria by the EU-JZG.

The guiding principle is the mutual recognition of judicial decisions within the European Union. In place of a classic interstate extradition procedure involving the governments comes a surrender procedure that runs largely between the judicial authorities. It is faster and bound to firmer conditions than traditional extradition.

The distinction of terms is important: within the EU one speaks of surrender on the basis of the European Arrest Warrant, towards third states of extradition. Both procedures pursue a similar aim but differ considerably in legal basis, course and conditions.

If a person is stopped in Austria on the basis of a European Arrest Warrant, the competent regional court decides on surrender. The procedure is governed by the EU-JZG (Sections 3 ff EU-JZG). The formal conditions of the warrant, the identity of the person concerned and the existence of obstacles to surrender are examined in particular.

The question of surrender detention often arises as well. As in national law, the principle of proportionality applies here too, so that more lenient measures may come into question. The person concerned may consent to simplified surrender or invoke the ordinary procedure.

From a legal perspective an early review is decisive. The sooner the content and basis of the warrant are clarified, the better objections, obstacles and detention questions can be handled appropriately.

In classic extradition, dual criminality is a central requirement: the offence must in principle be punishable in both states. With the European Arrest Warrant this principle is broken for a catalogue of serious categories of offence.

For a list of certain categories of offence set out in the annex to the EU-JZG, the examination of dual criminality is dispensed with where the offence is threatened in the issuing state with imprisonment in the upper range. These so-called list offences cover, for example, serious forms of crime.

From a legal perspective the classification of the offence is therefore of considerable importance. If it does not fall under a list offence, dual criminality remains to be examined, which can be an important starting point in the individual case.

The EU-JZG recognises grounds on which surrender must be or may be refused. Depending on the constellation, these include cases of offences already adjudicated within the meaning of the prohibition of double jeopardy, questions of the statute of limitations in criminal law, of the age of criminal responsibility or certain connections to the domestic state.

The protection of fundamental rights plays a special role. Where there are serious indications that surrender would violate the fundamental rights of the person concerned, for example because of detention conditions in the issuing state, this must be taken into account. The case law of the Court of Justice of the European Union has developed a differentiated examination on this.

From a legal perspective a careful review of possible obstacles is always worthwhile in the individual case, because they can determine the admissibility of surrender.

Towards states outside the European Union, the surrender procedure does not apply but the classic extradition under the Extradition and Mutual Assistance Act (ARHG) and the relevant treaties under international law. It follows its own conditions and obstacles.

Here too, dual criminality, the prohibition of double jeopardy, questions of limitation and fundamental-rights aspects are significant. The procedure is regularly more elaborate and may provide for involvement of the political level.

From a legal perspective the clean separation between EU surrender and extradition to third states is the first step, because the entire further legal framework follows from it.

Anyone expecting cross-border proceedings can order much in advance. It is sensible in particular to clarify whether a warrant even exists, whether it is a national or a European Arrest Warrant and what it is based on.

The state of proceedings in Austria is equally important. Ongoing proceedings do not automatically mean an arrest; a corresponding basis for detention, by contrast, does. From a legal perspective the situation can often be ordered by clarifying matters early with the competent bodies, so that an unprepared arrest situation is avoided.