Extradition within the European Union (EU) has evolved significantly thanks to the implementation of legal mechanisms that replace the traditional bilateral agreements with more agile, homogeneous and respectful of fundamental rights procedures. This progress has materialized mainly through the European Arrest Warrant (EAW) system, which aims to harmonize surrender procedures between Member States, simplifying the extradition process and strengthening judicial cooperation in criminal matters.

In this article we explain the common regulatory framework for extradition in the EU, the role of the EAW, its main advantages and limitations, as well as the role of national courts.

What is extradition in the European Union?

Extradition is the procedure by which a State surrenders a person sought by another State for trial or to serve a sentence already imposed. In the EU context, this procedure has been profoundly transformed by the creation of the Area of Freedom, Security and Justice, which promotes judicial and police cooperation between member states.

Before the entry into force of EU mechanisms, extradition was governed by bilateral or multilateral conventions such as the 1957 European Convention on Extradition, which involved lengthy processes, dependent on political authorizations and with a high risk of refusal on various grounds. The EU has opted to replace this model with a more automatic judicial system based on mutual trust.

The European Arrest Warrant (EAW)

The EAW was created by Council Framework Decision 2002/584/JHA and is the key instrument that has revolutionized the extradition system between member states. It is a judicial decision issued by a competent authority of an EU country for the purpose of arresting and surrendering a person located in another Member State for:

• To be prosecuted for a crime;
• Serving a custodial sentence;
• Execute a security measure.

Fundamental principles of ODE

• Mutual recognition: member states are obliged to automatically execute orders issued by other states, without the need for political or diplomatic intervention.
• Abolition of the principle of dual criminality: in certain serious crimes (terrorism, human trafficking, corruption, homicide, among others), it is not necessary for the act to be classified as a crime in both countries.
• Strict time limits: surrender must be resolved within a maximum of 60 days from arrest, or 10 days if the person consents to voluntary surrender.
• Fundamental rights guarantees: the implementation of the EMO must respect the EU Charter of Fundamental Rights and the European Convention on Human Rights (ECHR).

Advantages over the traditional extradition system

• Speed: more agile procedures with strict procedural deadlines.
• Depoliticization: the intervention of the executive branch is eliminated, which strengthens judicial independence.
• Homogenization: procedural criteria are unified throughout the EU.
• Increased judicial cooperation: fosters an active network of judges and prosecutors working in coordination.

Exceptions and grounds for denial

• Amnesty granted by the requested State.
• Minority of age of the respondent.
• Application of the principle of non bis in idem (not to be tried twice for the same act).
• Statute of limitations of the offense according to the legislation of the requested country.
• Risk of violation of fundamental rights (unfair trials, torture, inhuman or degrading treatment).

The role of national courts

The national courts have an essential role in the execution of the ODE. They are in charge of:

• Verify the formal validity of the order;
• Guarantee the fundamental rights of the respondent;
• Decide on the surrender in accordance with the grounds for refusal provided for in national and European regulations.

Courts sometimes seek clarification from the Court of Justice of the European Union (CJEU) when conflicts arise between judicial cooperation and the protection of fundamental rights. One of the most debated issues has been judicial independence in the issuing state.

Conclusion

Extradition within the European Union has ceased to be a complex diplomatic procedure and has become an efficient judicial tool based on trust and legal cooperation. The European Arrest Warrant has established itself as a pillar of the common judicial system, facilitating the rapid surrender of requested persons. However, its implementation poses relevant legal challenges that require a technical analysis on a case-by-case basis, especially with regard to respect for the rule of law and the guarantee of human rights.

Do you need advice in an extradition proceeding?

At Venfort Abogados we have a team highly specialized in International Criminal Law and European Judicial Cooperation. If you are facing a European Arrest Warrant or wish to prevent risks, book an appointment with us. We will help you understand your situation and defend your rights with rigor, experience and confidentiality.