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BlogDecember 28, 2022

European Arrest Warrant – what it is, how it works, how to defend yourself, and why it is a dangerous legal instrument

The European Arrest Warrant (EAW) is one of the most powerful instruments of EU judicial cooperation. An analysis of how it works, its risks, and defense strategies.

The European Arrest Warrant (EAW) is a simplified cross-border judicial surrender mechanism that replaced traditional extradition between EU Member States. Introduced by the Framework Decision 2002/584/JHA, it allows any EU court to issue a warrant for the arrest and surrender of a person in another EU country.

How does the EAW work?

  • A court in the issuing state issues an EAW for a person suspected of committing a crime punishable by at least 12 months imprisonment, or who has been sentenced to at least 4 months.
  • The EAW is transmitted to the executing state (where the person is located).
  • The executing state must execute the warrant within strict time limits (60 days, extendable to 90 days).
  • For 32 categories of offenses, double criminality is not verified – meaning the act does not need to be a crime in the executing state.

Why is the EAW dangerous?

  • Speed over substance – the emphasis on speed can compromise the quality of judicial review.
  • Mutual recognition flaws – the system is based on mutual trust between judicial systems, but in practice the quality of justice varies significantly across EU states.
  • Proportionality concerns – EAWs have been issued for trivial offenses, disrupting people’s lives disproportionately.
  • Detention conditions – the executing state should refuse surrender if there is a real risk of inhuman detention conditions, but this assessment is often superficial.
  • Polish context – given the well-documented problems with the Polish justice system (pre-trial detention abuse, judicial independence concerns), EAWs issued by Polish courts may raise legitimate concerns.

Defense strategies:

  • Challenge the proportionality of the EAW
  • Raise human rights concerns regarding detention conditions
  • Invoke the passage of time exception
  • Challenge the double criminality requirement for non-listed offenses
  • Argue ne bis in idem (double jeopardy)

Paweł Osiński

Attorney, expert in cross-border criminal law and EAW proceedings

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