EUROPEAN ARREST WARRANT
This leaflet covers:
Information about Fair Trials International
Frequently Asked Questions
The extradition process
General advice on extradition
It was last updated in February 2013
About Fair Trials International
Since 1992 Fair Trial International has worked for the better protection of fair trial rights and defended the rights of people facing criminal charges in a country other than their own. Our vision is a world where every person’s right to a fair trial is respected, whatever their nationality, wherever they are accused.
Fair Trials International was established to help people arrested outside their own country to defend their right to a fair trial. Every year we help hundreds of people and their families to navigate a foreign legal system by offering practical advice, including contacts of local lawyers; guidance on key issues encountered by people arrested abroad; and basic information on different legal systems and local sources of support. As a charity, we do not charge for any of the assistance that we provide.
We believe that respect for fundamental rights and the rule of law are the hallmarks of a just society and that the right to a fair trial is at the heart of this. Sadly too many shocking cases of injustice demonstrate how, time and again, this most basic human right is being abused. We fight against injustice by lobbying for the legal reforms needed to ensure that the right to a fair trial is respected in practice. Working with our clients and international networks, we also campaign for changes to criminal justice laws which are being abused and overused.
To find out more about how FTI can assist you, please contact our legal team (contact details on the back cover).
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This note is intended to be for information purposes only and does not constitute legal advice. Take local legal advice on your specific situation. Fair Trials International is a registered charity (No 1134586) and is registered with limited liability in England and Wales (No 7135273). We are a non- governmental organisation; as such, we are a wholly separate and independent organisation from the Foreign and Commonwealth Office.
If you require this leaflet in large print, please contact us at the address on the back cover.
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This note is intended to be for information purposes only and does not constitute legal advice. Take local legal advice on your specific situation. FREQUENTLY ASKED QUESTIONS
Please see below brief answers to some of the most commonly asked questions about the European Arrest Warrant.
Note: There may also be an international arrest warrant that will allow for your arrest outside Europe.
Q1. What is a European Arrest Warrant (EAW)?
An EAW is a legal document authorising your arrest in connection with a crime and your transfer (“surrender”) to another country either to face trial or to serve a prison sentence.
Q2. In what circumstances can an EAW be issued against me?
An EAW can be issued against you if you have been charged with a criminal offence (carrying a maximum sentence of minimum 12 months imprisonment) in a European Union (EU) Member State1, and that State wants you to face trial there. It can also be issued if you have been tried and convicted in an EU Member State
1Austria, Belgium, Bulgaria, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden and the United Kingdom. Note that there also is an agreement on surrenders between the EU and the Kingdom of Norway and Iceland.
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This note is intended to be for information purposes only and does not constitute legal advice. Take local legal advice on your specific situation. and that State wants you to serve your prison sentence (where it is a sentence of at least 4 months).
Q3. What kind of offences can an EAW apply to?
An EAW can be issued for a wide range of offences, from involvement in serious organised crime and terrorism to more minor offences like theft. In some cases you can be extradited even if the alleged activity is not a criminal offence in the country considering the extradition request.
Q4. Can I find out whether there is an EAW against me?
There is currently no straightforward system to find out whether there is an EAW against you. As the purpose of the warrant is to obtain your arrest, the police will not disclose this information to you in case you abscond.
Q5. Can the judge or the Government stop my extradition?
It is the Court’s decision whether to extradite you – the Government has no role in the decision.
Although it is in practice very difficult to resist extradition, a court can refuse on the following grounds:
o You are not the person named in the EAW or the EAW has not been properly completed; o You have already been convicted or acquitted by a court in another Member State in respect of the same offence; o In some countries, if an unreasonable period of time has passed since the events concerned; 5
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This note is intended to be for information purposes only and does not constitute legal advice. Take local legal advice on your specific situation. o The time limit for prosecuting you for the offence has expired; or o You have not reached the age of criminal responsibility under the national laws of the State from which your extradition is requested.
Note that some countries may have additional grounds for refusing to execute a EAW .You should ask your lawyer to explain on what grounds you can resist extradition in your specific case.
In principle, you should not be extradited if you can prove that your human rights have been or will be violated in the country seeking your extradition. It is, however, difficult in practice to resist extradition on this ground. If you fear that your human rights may be violated, you should share your concerns with your lawyer.
Q6. The Court has decided not to extradite me, am I free to travel now?
Once the court of one country has decided not to extradite you, you will not be subject to further arrest on the same EAW in that country.
However, the country that requested your extradition will still be able to seek your extradition from other countries. Therefore, your name will still be on the Europe-wide police alert system, and you will be at risk of being arrested and extradited if you travel to another country.
Although there is no straightforward system to obtain the removal of an EAW, you should ask your lawyer for specific advice in your case.
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This note is intended to be for information purposes only and does not constitute legal advice. Take local legal advice on your specific situation. Example: Germany seeks your extradition. You are arrested in Poland but the Polish court decides not to extradite you. You are safe to stay in Poland. However, if you decide to leave Poland and visit another country, you risk being arrested and facing a new extradition procedure.
THE EXTRADITION PROCESS UNDER AN EAW
The process that is followed will vary from country to country so you need to ask your lawyer (in the country where you are facing extradition) for details about the procedure. The following is an outline of the key features of the EAW process, which are common to all EU member states.
Note: There may also be an international arrest warrant that will allow for your arrest outside Europe.
Q1. If there is an EAW against me, will I get arrested by the police?
Once there is an EAW against you, your name will be on the Europe-wide police database. You may then be arrested in any of the countries of the European Union.
The police may contact you by telephoning your home and asking you to attend a local police station. They may also choose to visit you at a known address and serve the EAW on you there. Arrests commonly also take place when people cross a border or when they are stopped by the police for unrelated reasons (such as driving offences).
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This note is intended to be for information purposes only and does not constitute legal advice. Take local legal advice on your specific situation. It is important that you seek legal advice as soon as any of these things happen. Note that you have a right to be assisted by a lawyer, and an interpreter.
Q2. Can I get legal advice? If I cannot afford to pay for a lawyer, will I get legal aid?
When you are served with an EAW, you have a right to be assisted by a lawyer and by an interpreter. The rules governing free legal representation (i.e. legal aid) vary from country to country. You should ask your lawyer for information.
Q3. Will I have to go to court?
Shortly after your arrest, a judicial authority will hear you to:
o Seek confirmation that you are the person named on the EAW; o Explain the reasons for your arrest under the EAW; o Explain to you that you may consent to return to the country which issued the EAW; o Determine the date upon which the extradition hearing will be held if you choose not to consent; and o Decide whether to keep you in custody until the extradition hearing or whether to grant bail.
If you choose not to consent to the extradition there will then be an extradition hearing. At this hearing the judicial authority decides:
o Whether the offence is extraditable;
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This note is intended to be for information purposes only and does not constitute legal advice. Take local legal advice on your specific situation. o Whether there are any bars to extradition; o In addition, at the extradition hearing the judge may look at factors such as whether there is a real risk that your human rights could be infringed if you are extradited. Practice varies from state to state and if you have human rights concerns, for example about how you will be treated in detention if you are extradited, or any serious medical concerns, you should tell your lawyer about them.
If there are no bars or incompatibilities then the judicial authority must order your extradition.
Q4. Can I appeal against a decision to extradite me?
This will vary from country to country. Most countries allow at least one appeal against extradition, but some do not. You should ask your lawyer to give you details about the extradition process.
e.g.: In the UK, it is possible to appeal against a decision to extradite you. Appeals must be lodged within 7 days of the court’s extradition order and are heard by the High Court. In exceptional cases, you may have a further right of appeal to the Supreme Court. In some other countries, like the Netherlands, there is no right of appeal.
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This note is intended to be for information purposes only and does not constitute legal advice. Take local legal advice on your specific situation. Q5. When will extradition take place?
The EAW was designed to speed up extradition and the legislation creating it has set very tight timeframes (from 10 days when you consent to extradition to 60 or 90 days when you resist it). In practice, however, the period of time will depend on the complexity of the case and whether or not you challenge your extradition and exercise any rights of appeal.
The surrender will normally take place within 10 days after a final decision is made to extradite you.
Q6. Can I be prosecuted for something other than the offence mentioned in the warrant?
In general, you can only be prosecuted for the offence described in the EAW. If you are concerned about other offences, it may be important to raise this with your lawyer so that you get the right advice.
Q7. Should I consent to extradition?
It is impossible to provide a general answer to this question. You should obtain specialist legal advice before making this decision and, where possible, you should also obtain advice from a lawyer in the country requesting your extradition.
You should, in particular, discuss the following with your lawyer(s):
o Your chances of successfully challenging your extradition; o Whether you are likely to be granted bail during any extradition proceedings; 10
Fair Trials International – February 2013
This note is intended to be for information purposes only and does not constitute legal advice. Take local legal advice on your specific situation. o What impact your decision to consent to extradition would have on your treatment in the country requesting it; o The amount of time you would have to spend in custody in the country requesting your extradition before any trial starts; and o The likelihood that you will be convicted if you are extradited and the likely sentence.
Q8. What if I was found guilty in my absence?
It may be the case that a foreign court has found you guilty in your absence and you were not informed of the trial or decision. If you are later arrested and extradited, you should normally be granted a new hearing in the country that has requested your return.
GENERAL ADVICE
• Legal representation
You need to seek legal advice as soon as possible after you have been arrested on an EAW. It is strongly advised that you appoint two lawyers, one in the country where you are arrested and one in the country seeking your extradition. Your consulate may also be able to assist with this.
Please note that Fair Trials International cannot act as your lawyer, but we can suggest lawyers (including specialist extradition lawyers) for you to contact in the country where you were arrested on the EAW and in the country that is seeking your extradition. We may be able to assist by raising political or media interest in your case, or by intervening.
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This note is intended to be for information purposes only and does not constitute legal advice. Take local legal advice on your specific situation. If you would like us to assist, you should fill in our questionnaire and return it to us.
Questions to ask to a lawyer in the country of arrest:
o Ask your lawyer whether you can get legal aid; o Ask about bail; o Ask about how you could resist extradition, and whether your extradition is compatible with your human rights (giving him any relevant information, for example about your state of health or your family situation).
Questions to ask to your lawyer in the country seeking your extradition:
o It is important to get information on the case against you. Ask your lawyer to request as much information as possible from the Court or the Prosecution; o Ask about legal aid; o Ask about general rules regarding access to a lawyer (will s/he be present during police interview?); o Ask about your chances of getting bail pending trial; o Ask about the detention conditions if you were to be held on remand awaiting trial.
Communication issues
In a foreign country, communication can be a challenge. You should seek information about your right to have an
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This note is intended to be for information purposes only and does not constitute legal advice. Take local legal advice on your specific situation. interpreter present at police interviews and during court hearings.
Get information about your right to contact your family and friends. You are allowed to inform your consulate of your extradition and subsequent imprisonment.
This leaflet was last updated in February 2013. The information contained in this document is provided for information purposes only and is not intended as legal advice, nor does it constitute legal advice. Whilst we endeavour to keep the information up to date and correct, Fair Trials International makes no representations or warranties of any kind, express or implied about the completeness, accuracy, reliability, suitability or applicability to individual cases of the information contained in this leaflet. Any reliance you place on such material is therefore strictly at your own risk. Fair Trials International disclaims any liability to the fullest extent permissible by law for any loss or damage of any kind arising from the use of the information provided. You should always seek professional legal advice from a lawyer qualified to practice in the jurisdiction you are in.
If you think that an important question is not covered in this factsheet, please let us know.
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This note is intended to be for information purposes only and does not constitute legal advice. Take local legal advice on your specific situation. Justice in Europe Campaign: The Arrest Warrant
We are campaigning for a fairer system of extradition within Europe. We have used the real-life examples of people we have helped challenge unjust extradition, to persuade policy makers of the need for change. We have generated media coverage in many cases, so that the public understands the impact extradition has on individuals and their families. We have generated political awareness of the flaws in the current system, too, not only in the UK where we are based but in the heart of the EU, taking our clients’ cases to Brussels and organising debates in the European Parliament. We have pooled the experiences of our clients with those of many lawyers we work with in other EU countries, and written to the European Commission with our shared concerns and recommendations for reform. We have also been involved in litigation challenging the inappropriate use of the EAW and in some cases helping individuals to avoid extradition, for example, by negotiating with overseas prosecutors to look for less draconian alternatives to extradition. We have also successfully campaigned for better basic defence rights for people being extradited, for example the right to an interpreter and translation of key documents, the right to information on arrest, access to legal advice and the right to notify family members and consular officials of your arrest.
For more information on our Justice in Europe campaign visit: http://www.fairtrials.net/justice-in-europe/
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Fair Trials International – February 2013
This note is intended to be for information purposes only and does not constitute legal advice. Take local legal advice on your specific situation.
Working for a world where every person’s right to a fair trial is respected, whatever their nationality, wherever they are accused
THANK YOU
Fair Trials International would like to thank the law firms and individual practitioners, both in the UK and abroad, who have generously given their time and expertise to help produce these legal guidance notes.
Fair Trials is grateful to all of its funders, including:
Co-funded by the European Union
For a full list of our funders see www.fairtrials.net/support_us/supporters Fair Trials International T: + 44 (0)20 7822 2370 3/7 Temple Chambers F: + 44 (0)20 7822 2371 Temple Avenue [email protected] London EC4Y 0HP www.fairtrials.net United Kingdom
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Fair Trials International – February 2013
This note is intended to be for information purposes only and does not constitute legal advice. Take local legal advice on your specific situation.