Challenging a European Arrest Warrant in Germany

By Dr. Julius Hagen, Attorney at Law

An EAW must be challenged through two separate legal tracks

A German Higher Regional Court cannot set aside a European Arrest Warrant issued by another EU Member State. It decides whether surrender from Germany is permissible. The General Public Prosecutor's Office separately considers at the authorisation stage whether statutory grounds justify refusing surrender. A decisive objection can therefore prevent execution in Germany, but it does not ordinarily remove the foreign warrant or the underlying decision.

The domestic warrant must be withdrawn, suspended or set aside in the issuing state. A German refusal does not automatically eliminate the risk of arrest in another Member State either. We therefore connect both defence tracks: admissibility, authorisation and, where relevant, detention are contested in Germany, while the domestic warrant, underlying decision and criminal proceedings are addressed in the issuing state.

The German surrender proceedings are not a second criminal trial on guilt or innocence. Under section 10(2) IRG, the evidential basis of the allegation is examined only where special circumstances call for such a review. Each objection must therefore be directed to the correct legal test and supported by the material relevant to that test.

Formal defects may prevent a surrender decision

Section 83a IRG requires the EAW to state, among other matters, the requested person's identity and nationality, the issuing judicial authority, the enforceable underlying decision, the legal classification of the offence, specific circumstances including time, place and participation, and the applicable maximum penalty or sentence imposed. A Schengen Information System alert may be sufficient if it contains all required particulars or they are supplied later.

Not every inaccuracy leads to refusal. If information needed for the decision is missing, Article 15(2) of the EAW Framework Decision requires the executing judicial authority to seek the necessary supplementary information from the issuing state. A formal objection becomes decisive where identity, the conduct alleged, the underlying decision or the scope of the request still cannot be reliably assessed after that process.

The statement of conduct deserves particular attention. It must show what the requested person is alleged to have done. A generic offence label is no substitute for particulars of time, place and participation. Inconsistencies between the EAW, SIS data and the underlying decision must also be resolved before surrender.

Penalty thresholds and dual criminality are separate tests

For prosecution, section 81 IRG requires the offence to carry a maximum custodial penalty of at least 12 months in the issuing state. For enforcement of a judgment, the custodial sentence or detention order imposed must be at least four months.

Dual criminality is not examined for the 32 categories in Article 2(2) of the Framework Decision where the offence carries a maximum custodial penalty of at least three years in the issuing state. A tick against a listed category does not end the enquiry: the factual description, classification and penalty range must correspond. Outside that list, the court considers whether the conduct described would also constitute a criminal offence under German law after the facts are transposed appropriately.

The analysis concerns the conduct stated in the request, not merely the foreign name of the offence. Reliable translations of the applicable law and coordination with counsel in the issuing state may therefore be decisive.

Prior proceedings, trial in absence and a life sentence require precise evidence

Section 83 IRG contains several mandatory limits on surrender. Subject to its detailed requirements, surrender is barred where the requested person has already been finally judged for the same acts in another Member State and any sentence has been served, is being served or can no longer be executed. Where Germany has jurisdiction, certain German decisions, a discontinuance after conditions have been fulfilled or limitation under German law may also matter. The question is not simply whether two cases appear similar, but whether they concern the same acts in the legal sense.

A judgment delivered in the person's absence does not automatically bar surrender. The court must determine whether the person had timely and proven knowledge of the trial, was in fact represented by instructed counsel, knowingly declined a new trial after service of the judgment, or will have access after surrender to a remedy involving a fresh determination of the merits. Records of summons, service and representation are often more important than a general assurance.

Further limits apply where the requested person, because of their age at the time, could not be held criminally responsible under German law. Where a life sentence is possible or has been imposed, the issue is whether enforcement will be reviewed within 20 years at the latest.

German nationality, residence and domestic proceedings may change the outcome

German nationals are protected by the additional requirements in section 80 IRG. In prosecution cases, the analysis includes the connection of the alleged conduct with the issuing state or Germany and an assurance concerning return to Germany to serve any sentence. A German national may be surrendered to enforce a foreign sentence only after consenting before a judge and following the prescribed advice.

For foreign nationals habitually resident in Germany, section 83b IRG may allow authorisation to be refused. In sentence-enforcement cases, the absence of consent and the person's legitimate interest in serving the sentence in Germany are particularly relevant. Pending German proceedings, or a German decision not to open or to discontinue proceedings for the same acts, may also affect authorisation. An address alone is not enough; personal ties and the procedural history must be documented and legally assessed at an early stage.

Fundamental-rights risks require specific and individual evidence

The EAW system is founded on mutual recognition and mutual trust within the EU. General criticism of the issuing state's justice system or detention conditions will therefore not normally suffice. European fundamental rights nevertheless remain binding under section 73 sentence 2 IRG and Article 1(3) of the Framework Decision.

For detention conditions or threats to a fair trial, the case law of the Court of Justice of the European Union requires a precise assessment. Reliable material indicating general or systemic deficiencies must be connected to the person's individual situation, the prison in which they are expected to be held or the judicial body dealing with the case, and the circumstances of the underlying proceedings. The German judicial authority must seek further information where necessary. The defence task is therefore not to offer a general country assessment, but to demonstrate a real individual risk that remains despite the issuing state's answers.

Section 6(2) IRG also remains relevant where there are substantial grounds for believing that surrender would expose the person to political persecution or another discriminatory form of persecution or disadvantage specified in that provision. This objection likewise requires evidence extending beyond a bare allegation that the proceedings are unfair.

We coordinate German objections with the challenge in the issuing state

Once instructed, we obtain and compare the EAW, the German surrender file and the available decisions from the issuing state. We allocate each issue to the Higher Regional Court's admissibility decision, the preliminary authorisation decision or a remedy in the issuing state. Any information missing from the request that is material to the decision is identified precisely in submissions to the General Public Prosecutor's Office and the court.

At the same time, we coordinate with defence counsel in the issuing state or identify suitable local counsel. That second track may include access to the criminal file, remedies against the domestic warrant, applications to withdraw or suspend it, and clarification of service, finality or retrial rights. Both teams work from the same factual record so that submissions in Germany do not undermine the defence of the underlying case.