What is an European Arrest Warrant?
The European Arrest Warrant was created to ensure that an order for arrest issued by a court in one Member State could be directly enforced by a judge of another Member State. It’s a sort of fast-track extradition process within the European Union.
For example, let’s say that a person has been convicted or is being prosecuted in the UK for a certain crime, and is now living in Spain. By sending this type of warrant, the UK authorities require Spanish authorities to arrest and transfer him, so that that the person can be put on trial or be taken to prison in the UK.
How are EAW’s processed in Spain?
Once the requested person has been located in Spain, the police will arrest him and bring him before a central court here in Madrid, within no more than 72 hours of the arrest.
The arrested person must be informed by the Spanish court of the contents of the arrest warrant so that he can consent to the warrant or oppose it.
If the person concerned consents to surrender to the issuing State and the Public Prosecutor sees no grounds for refusing such surrender, the Judge will issue an order for surrender to the issuing State, and no appeal is possible against such order.
Where the requested person has not agreed to be surrendered and/or the Public Prosecutor’s Office notices a refusing cause, the judge must refer the proceedings to a higher court, so that it may decide within 60 days of the arrest.
If the decision is to approve the European warrant, the effective surrender shall take place no later than 10 days after the final decision. The issuing judicial authority designates the police authority that will come to Spain to pick up the requested person. Meanwhile the person is remanded in custody or bailed.
What are the grounds to oppose a EAW?
At the hearing later on , the judge determines whether the offence is one for which a person can be surrended and if so, he then considers whether there are any statutory prohibitions on the EAW, including:
- the person’s age, if he is under or over the age of criminal responsibility
- the passage of time since the alleged offence
- whether the person had been pardoned by the Spanish government
- whether the person is already serving a sentence in Spain for the same crime
What are the rights of the person sought?
The detained person must be informed of the warrant, and has also the right to be assisted by a local lawyer and, if necessary, an interpreter. He also has the the right to be heard by the Spanish judge. If he wishes so, a family member or friend must be informed of his detention, and also his home country’s consulate.
is there a proportionality issue in EAWs?
The main issue is that under the “no-questions-asked” rules, Spanish police are obliged arrest suspects no matter what the charges, and even in trivial cases. There is a proportionality issue. Some countries are using the EAW to pursue people for relatively minor offences. The effect on the lives of individuals of their being extradited for very minor offences may be completely excessive.
The issuing of EAWs for minor offences and the breach of proportionality are things that the lawyer should be very aware of when it comes to defend his client.
What is the principle of speciality?
A state wishing to prosecute a surrendered person for offences committed before his surrender must obtain the permission of the Spanish court.
This principle of specialty is intended to ensure that a state cannot seek the surrender of a person for an extraditable offence whilst intending to prosecute that person for a non-extraditable offence once surrendered.
By default the principle of specialty applies to all persons surrendered. However, it does not apply if the surrendered person waives his right to specialty. It is very important therefore to ask your Spanish lawyer whether this is advisable or not depending on the circumstances.
Getting legal help
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