Arrested in Germany under a European Arrest Warrant

By Dr. Julius Hagen, Attorney at Law

After an EAW arrest, the first statements and signatures matter

An arrest under a European Arrest Warrant may take place at an airport, at the border, at home or at work. The police must tell the requested person why they have been arrested. If a German extradition detention order has already been issued, it must be disclosed without delay and a copy provided. In many cases, the arrest initially results from an alert in the Schengen Information System. Under section 83a(2) of Germany's Act on International Cooperation in Criminal Matters (IRG), a sufficiently complete SIS alert may itself be treated as a European Arrest Warrant.

There is no need to give an immediate account of the allegations. Even an explanation intended to clear matters up may be recorded and later used in the German surrender proceedings or in the criminal case in the issuing state. Once an arrest has taken place, German law treats legal representation as mandatory. If the requested person has no lawyer, the court must arrange an appointment without delay under section 40 IRG.

The first court hearing is not the final surrender decision

The requested person must be brought before a judge of the nearest local court without delay and no later than the day after arrest. The judge will establish identity, nationality and other personal circumstances. The person must be told that they may consult a lawyer at every stage and that they are free to remain silent about the alleged offence. The judge will also ask whether there are objections to surrender, the extradition detention order or the provisional arrest.

The local court does not normally make the final decision on surrender at this hearing. In a provisional-arrest case, it will check matters including whether the correct person has been arrested and may order continued custody pending a decision by the Higher Regional Court. The General Public Prosecutor's Office and the competent Higher Regional Court then conduct the German surrender proceedings. The record of the first hearing is therefore important to the defence.

Practitioners sometimes describe this limited role with the deliberately pointed phrase that local-court judges in extradition matters see themselves as the “secretaries of the Higher Regional Courts”. This is not intended to disparage the local court. It conducts the first hearing, records objections and refers substantial concerns to the General Public Prosecutor's Office and the Higher Regional Court. A substantive defence developed only at that hearing will nevertheless rarely have a significant prospect of obtaining a final refusal of surrender or lasting release from the local court itself. Specific objections may still matter because they can trigger the Higher Regional Court's immediate involvement.

Where an arrest under a European Arrest Warrant can be anticipated, a carefully prepared preventive submission, known in German practice as a präventive Schutzschrift, can place the principal arguments before the competent General Public Prosecutor's Office at a very early stage. It must be tailored to the expected alert, the person concerned, the known procedural position and the objections that can be supported by evidence. The documents and the specific protective measure sought also need to be presented coherently. A generic or incomplete submission will usually achieve little; effective preventive work therefore requires thorough preparation.

Documents needed for the initial review

German surrender counsel will first need the EAW or SIS alert, any German detention order, the local court's custody decision and hearing record, and correspondence from the General Public Prosecutor's Office. Available material from the issuing state is also relevant, particularly the domestic arrest warrant, an indictment or the judgment to be enforced.

Personal records may matter as well: evidence of nationality and habitual residence, family ties, employment, address and health. Family members should record the place and time of arrest, the authority involved, the case reference and the language in which the requested person can communicate. A lack of documents does not prevent an initial intervention, but it determines which information must immediately be obtained from the authorities.

Coordinated defence in Germany and the issuing state

The German proceedings concern arrest, extradition detention and the decision whether to execute the EAW. The domestic warrant and underlying criminal case remain within the jurisdiction of the issuing state. Section 83c(2) IRG requires the requested person to be informed without delay of the right to appoint a lawyer there.

If the requested person has not already instructed a lawyer, counsel must be appointed promptly after arrest. In practice, this first appointment is often made under considerable time pressure from the pool of lawyers available for appointment as mandatory extradition counsel. The court-appointed Pflichtbeistand may be an excellent criminal defence practitioner. Extradition law and the European Arrest Warrant nevertheless have their own rules governing detention, admissibility, executive authorisation, deadlines and cross-border defence. General criminal-defence experience does not automatically provide that specialist knowledge. It is therefore usually very advisable to instruct a lawyer experienced in extradition law as chosen counsel, particularly before making any statement about simplified surrender, speciality or other protected legal positions. Whether chosen counsel works alongside the Pflichtbeistand or takes over the defence should be decided in light of the individual proceedings.

The two defence tracks should be connected early. Counsel in the issuing state may seek access to the criminal file, examine the domestic arrest warrant and assess whether it can be withdrawn, suspended or dealt with by another procedural route. German counsel simultaneously addresses the basis for arrest, custody, objections to surrender and any conditions attached to surrender. Where a matter requires additional local expertise, we identify and coordinate suitable counsel on the ground.

What we do once instructed

We first establish the place of detention, case reference, responsible General Public Prosecutor's Office and competent Higher Regional Court. We then notify the authorities that we act, arrange confidential access to the requested person and seek the German surrender file. If no lawyer has yet been appointed, we address mandatory representation with the competent court.

We use that information to review the legal basis for arrest, prepare objections for the next stage and advise on any statement sought at the first or a later hearing. At the same time, we secure the documents, place health and personal circumstances before the relevant authorities where appropriate, and coordinate the work with counsel in the issuing state.