The European Arrest Warrant and extradition are two procedures that facilitate the transfer of a person sought or convicted between countries. Although they lead to a similar outcome, they differ in legal basis, scope of application, decision-making process, and duration of proceedings. The EAW primarily operates between European Union member states, whereas extradition is mainly applicable in relations with non-EU countries.
The European Arrest Warrant, abbreviated as EAW, is a judicial decision issued by an authority of one EU member state to arrest and transfer a person located in another member state. It may pertain to conducting criminal proceedings or executing a final custodial sentence. Extradition, on the other hand, involves the surrender of a sought or convicted person at the request of a foreign state. Its basis may include national laws, bilateral agreements, international conventions, and the principle of reciprocity. In the Polish Code of Criminal Procedure, extradition is distinctly differentiated from the transfer of a person based on an EAW.
The most significant difference concerns the nature of both institutions. The EAW is a mechanism of judicial cooperation based on the principle of mutual recognition of judgments issued in EU member states. This means that the authorities of one state should, in principle, recognize and execute the decision of a court from another member state. Classical extradition has a more formalized intergovernmental character. The procedure may involve not only courts but also administrative bodies and representatives of the executive branch. If the case is international, assistance may be provided by a law firm in Gdańsk, analyzing the grounds for the search and the admissibility of surrendering the person abroad. The EAW replaced previous lengthy extradition procedures in relations between EU countries.
The European Arrest Warrant operates between EU member states. A warrant issued by the competent judicial authority of one state may be transferred for execution in another state if there are grounds to believe that the sought person is present there. This mechanism has been in effect since January 1, 2004. Extradition is primarily applicable when the transfer is to occur between Poland and a state not participating in the EAW system. Whether a specific international agreement, multilateral convention, or the principle of reciprocity is utilized depends on the legal relationship between the two states. Therefore, the terms extradition and European Arrest Warrant should not be treated as interchangeable names for the same procedure.
An EAW may be issued to conduct criminal proceedings or execute a custodial sentence or another measure involving deprivation of liberty. The application of this procedure must be proportionate to the seriousness of the offense and the objective to be achieved. The mere issuance of the warrant does not automatically mean the person will be transferred. The regulations specify minimum thresholds related to the penalty threat or the length of the imposed sentence. In the case of criminal proceedings, the offense should be punishable by a custodial sentence with an upper limit of at least 12 months. When the EAW serves to execute a sentence, the imposed penalty or security measure must be at least four months.
In extradition proceedings, the principle of double criminality is usually significant. It means that the conduct underlying the request should constitute an offense in both the requesting state and the state that is to surrender the person. In the case of an EAW, this principle has been partially limited. The examination of double criminality may not be conducted for 32 categories of offenses specified in EU regulations if the act in the issuing state is punishable by a sufficiently high penalty. This list includes, among others, terrorism, human trafficking, corruption, fraud, money laundering, and participation in an organized criminal group. In other cases, the conformity of the act with the law of both states may still be subject to assessment.
Once the location of the sought person is determined, they may be arrested by the competent authorities of the executing state. The person should be promptly informed of the existence of the EAW, its content, and their rights. The case is then referred to the court, which assesses whether the conditions for transfer are met. At this stage, prompt contact with defense counsel is crucial. Professional legal assistance after arrest allows for verification of documents, determination of the basis for detention, and preparation of a position before the court hearing. Defense counsel can also assess whether there are grounds for refusal to execute the warrant and whether the applied isolation measures are proportionate.
A person subject to a European Arrest Warrant is not deprived of the right to defense. They may avail themselves of legal counsel, receive information on the reasons for arrest, review the content of the warrant, and access translation services. It is also important to have the right to present arguments regarding the admissibility of the transfer. Depending on the circumstances of the case, the defense may include:
The court does not reassess whether the person actually committed the alleged act. The proceeding regarding the execution of an EAW does not replace the criminal trial that is to take place or has already taken place in the issuing state. The court examines whether the statutory grounds for transfer exist and whether there is a basis for refusal. Factors such as prior final adjudication of the same case, the age of the person excluding criminal liability, or the act being covered by an amnesty in the executing state may be significant. In certain situations, conditions of serving the sentence, health status, risk of violation of fundamental rights, and guarantees provided by the issuing state are also evaluated. A lawyer specializing in criminal law in Gdańsk can assist in determining the scope of argumentation.
One of the main objectives of introducing the EAW was to expedite the transfer of persons between member states. If the detained person consents to the transfer, the final decision should generally be made within 10 days of consent. In other cases, the prescribed period for making a decision is usually 60 days from the time of arrest. After the final decision is issued, the person should be transferred within a timeframe agreed upon by the competent authorities, generally no later than 10 days. These deadlines may only be extended in exceptional circumstances. Classical extradition typically takes longer, as it requires a more elaborate procedure and involves authorities at various levels.
The European Arrest Warrant and extradition differ in territorial scope, legal basis, pace of proceedings, and the role of authorities involved in the procedure. The EAW is a simplified mechanism for judicial transfer of persons between EU countries, while extradition primarily concerns cooperation with non-EU countries and tends to be more elaborate. In the event of arrest, obtaining information about the issuance of an EAW, or initiation of extradition proceedings, it is advisable to consult a lawyer as soon as possible. The Haber and Haber law firm provides assistance in criminal cases, representation before the court, and analysis of the legal grounds for transferring a person to another country. Contact the firm to discuss documents and possible legal actions.
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