European Arrest Warrant

Cross-border law enforcement and mutual legal assistance

A central instrument in European mutual legal assistance is the European Arrest Warrant (EAW), who has been the cross-border arrest and transfer of persons from one state to another. The EAW is more than just a search measure – it already includes the request for the arrest and surrender of the person being pursued.

The resulting interference with civil liberties sometimes goes beyond the restriction of liberty associated with a national arrest warrant. Enforcement takes place in another country, which does not conduct the investigations and is usually responsible for ordering Extradition detention In addition to extradition to another EU Member State, lengthy detention periods of up to 120 days in the executing state and limited legal remedies, as the courts of the executing State have only limited powers to review the EAW. During the transfer, Legal protection deficits; delays in the appeal process may also lead to extensions of detention pending extradition.

Germany issued a total of 3,222 European arrest warrants in 2022 – more than any other European country. These figures show the Importance of extradition law in which the lawyers in our office have been working regularly for a long time. In 2005, as a result of the work carried out by lawyer Gül Pinar guided successful constitutional complaint the then – first – law implementing the Framework Decision on the European Arrest Warrant and the surrender procedures between the Member States of the European Union (European Arrest Warrant Act – EuHbG) of 21 July 2004 due to a violation of Article 2 paragraph 1 in conjunction with Article 20 paragraph 3, Article 16 paragraph 2 and Article 19 paragraph 4 of the Basic Law. Federal Constitutional Court stated (2 BvR 2236/04 = BVerfGE 113, 273, para. 65):

"[…] citizens [should] not be removed against their will from the legal system they are familiar with. Every citizen – as long as he or she remains within the territory of the state – should be protected from the uncertainties of being tried under a legal system foreign to him or her and in circumstances that are difficult for him or her to understand [...]."

However, even in more recent developments, it can be seen that there are still numerous ambiguities in case law on this matter. In 2019, the European Court of Justice (ECJ) following a request for a preliminary ruling under Article 267 TFEU, that the German public prosecutor's office did not meet the requirements of an independent judicial authority under Article 6(1) of the Framework Decision on the EAW. The reason was that it potentially Instructions from the executive are subjectTherefore, public prosecutors in Germany are currently not allowed to issue European arrest warrants – this is the sole responsibility of independent judicial authorities. current still Subject of legal policy discussion; in 2024, the Federal Ministry of Justice in this regard Draft law presented.

Furthermore, the law of international mutual legal assistance in criminal matters has been “More effective” combating cross-border crime in motion. For example, the possibilities for securing and releasing electronic evidence within the EU, and particularly across national borders, are being newly regulated (so-called E-Evidence Regulation). Also in the area of Asset confiscation should the cross-border cooperation between law enforcement authorities "improved", meaning that the seizure and confiscation of assets will be made even easier. corresponding EU directive has already entered into force and must be implemented into national law by November 2026.