European arrest warrant: an update from your criminal lawyer

Established by a framework decision of the Council of the European Union in June 2002, the European arrest warrant was introduced into French law in 2004. What is this judicial tool and how does it differ from the extradition procedure? We explain!

What is a European arrest warrant?

The European Arrest Warrant was adopted to facilitate the surrender of an individual to another member state of the European Union. It is a specific procedure that provides a faster result than the extradition procedure. Implemented by law no. 2004-204 of 9 March 2004, this mechanism is based on cooperation between EU member states, with a system for handing over wanted individuals directly between judicial authorities.

Articles 695-11 to 695-51 of the Code of Criminal Procedure govern the procedures for the European arrest warrant. Article 695-11 defines the European arrest warrant as a judicial decision issued by a Member State of the European Union, with a view to the arrest and surrender of a person by another Member State, for the purposes of criminal proceedings or the execution of a custodial sentence or detention order.

We’re talking about a fast-track procedure, but what we’re aiming for is simplicity! The rules of the European arrest warrant apply between EU Member States, replacing the extradition procedure. Although largely inspired by the extradition procedure, the European arrest warrant is a strictly judicial procedure. The extradition request, on the other hand, is based on a decision by the Ministry of Foreign Affairs. It is a concrete manifestation of the principle of mutual recognition between states. By simplifying the process, the discretionary power of the State and the grounds for refusal are reduced.

Who can be the subject of a European arrest warrant?

The European Arrest Warrant concerns a person sought by a State of the Union for the purposes of prosecution, or to carry out a sentence that has already been passed. It can therefore be issued for any suspected person, a person convicted as the perpetrator, co-perpetrator or accomplice of an offence or attempted offence.

According to article 695-12 of the Code of Criminal Procedure, the warrant concerns :

• Acts punishable by a custodial sentence of one year or more;
• offences for which a sentence of at least 4 months’ imprisonment has already been handed down;
• Offences warranting a custodial sentence of one year or more;
• Offences for which a custodial sentence of 4 months or more has already been imposed.

This article covers 32 categories of offence for which it is not necessary to demonstrate dual criminality. In practice, the arrest warrant covers criminal activity, terrorism, corruption, arms trafficking and tax fraud.

Procedure for executing the European arrest warrant

Fairly short deadlines guarantee the effectiveness of the procedure

The public prosecutor notifies the individual of the European arrest warrant within 48 hours of his arrest. As with police custody, the individual is given essential information, such as the right to be assisted by a lawyer.

Under article 695-29 of the Code of Criminal Procedure, the first appearance is held within a maximum of 5 working days. The investigating chamber then asks the person whether or not he or she agrees to be handed over to the requesting state.

If the personagrees to be handed over to the requesting state, the investigating chamber must then giveits decision on the individual’s surrender within 7 days of the appearance. The authorities of the two states then set a date for the surrender of the individual within 10 days.

If the individual refuses to be handed over to the requesting state, the deadline for taking a decision is extended to a maximum of 20 days. However, the only recourse is an appeal to the Supreme Court, lodged by the lawyer within 3 clear days of the hearing at which the surrender decision was made. It is important to contact your lawyer as soon as possible!

Surrender of nationals

The European arrest warrant does not make it possible to oppose the surrender of a national. France cannot therefore refuse to surrender a French citizen to the authorities of an EU Member State if he or she has been convicted in that country. However, it may request that procedural guarantees be respected, such as the possibility of requesting a review of a life sentence or serving the prison sentence in the country of origin.

Refusal to execute the European arrest warrant

Imperative grounds for refusing to execute the European arrest warrant :

• Amnesty extinguishes the action or penalty ;
• The action or penalty is time-barred in the requested State;
• The same offence is the subject of a final judgment in another EU Member State;
• The person sought was under 13 years of age at the time of the offence;
• The warrant is based on discriminatory prosecution based on the sex, race, religion, ethnic origin, nationality, language, political opinions or sexual orientation of the person concerned;
• The person’s situation is in danger for the same reasons.

Optional grounds for refusal to execute the European arrest warrant :

• The person is being prosecuted for the same acts on French territory;
• The French courts do not wish to prosecute for these offences;
• The warrant relates to acts committed partly on French territory;
• The French state undertakes to prosecute its national for the offences covered by the warrant or to enforce the sentence handed down by the judicial authority of the issuing state;
• There is no sufficient guarantee of respect for fundamental human rights.

In conclusion, the legal complexity of the European Arrest Warrant requires the assistance of a specialist lawyer. His or her expertise guarantees that you will have a full understanding of the case throughout the process and that your rights will be protected. Your lawyer will represent you before the competent authorities and facilitate communication with the foreign judicial authorities. Last but not least, your lawyer will prepare a solid defence, drawing on all the elements needed to challenge the arrest warrant or, if necessary, to obtain fair guarantees. Consult your lawyer to find out more about criminal law issues!