European Arrest Warrant: how surrender works and how it is resisted
The European Arrest Warrant replaced extradition between EU member states. It was built to be fast and near-automatic: a court in one state issues it, a court in another executes it, governments are not involved. The grounds for refusal are a closed list, and the whole procedure runs on deadlines — 60 days from arrest to decision, extendable by 30, and surrender within 10 days of the final decision.
Why it is not extradition
Extradition is a relationship between two governments, with a political decision at the end. The EAW removed that: it is a judicial decision recognised by another judicial authority, on the principle of mutual recognition. The executing court is not asked whether surrender is appropriate. It is asked whether one of the listed grounds for refusal applies.
That is the framework anyone resisting an EAW has to work inside. Arguments about the merits of the case — I did not do it, the evidence is weak — belong to the issuing state and will not be heard by the executing court.
Dual criminality, and where it disappears
As a rule the conduct must be an offence in both states. For a list of thirty-two categories of offence, however — including drug trafficking, participation in a criminal organisation, fraud, money laundering and corruption — that check is abolished, provided the offence carries at least three years in the issuing state.
This matters more than it looks. Where the offence is ticked into one of those categories, the executing court will not examine whether the conduct would be criminal at home. Whether the tick was correctly applied, on the other hand, is arguable, and it is often the first point taken.
The grounds for refusal
| Ground | Nature | Note |
|---|---|---|
| Amnesty in the executing state | Mandatory | Where that state had jurisdiction |
| Ne bis in idem | Mandatory | Final judgment for the same acts in a member state |
| Below the age of criminal responsibility | Mandatory | Under the executing state's law |
| Limitation under the executing state's law | Optional | Where it had jurisdiction over the acts |
| Proceedings pending for the same acts | Optional | In the executing state |
| Nationals and residents, for sentences | Optional | The state may serve the sentence itself |
| Conviction in absentia | Conditional | Unless the guarantees in the framework are met |
The in absentia ground is the one that arises most often with Italian warrants, precisely because Italian procedure allows proceedings to continue where knowledge is established. The executing court will want to see either that the person was summoned in person, or that a retrial is available on surrender.
Where fundamental rights come in
The framework has no general human rights refusal ground, and courts have been careful not to invent one. What the Court of Justice has accepted is a narrow, two-stage test: where there is evidence of systemic deficiencies — in prison conditions, in the case law beginning with Aranyosi and Căldăraru in 2016, or in judicial independence, in the case law beginning with LM in 2018 — the executing court must then assess whether that creates a real risk for this particular person.
It is a demanding route and it fails when it is asserted rather than evidenced. What works is specific, current material about the actual prison or the actual court, not general reporting.
The timetable
| Step | Deadline | Effect |
|---|---|---|
| Consent to surrender | Decision within 10 days | Shortens everything |
| Contested case | Final decision within 60 days of arrest | Extendable by 30 days |
| Surrender | Within 10 days of the final decision | New date if impossible |
| Speciality | Prosecution limited to the offences surrendered for | Unless consent or waiver |
Consenting is a real option and not a defeat: it produces a decision in days rather than months, and time spent in custody abroad counts against the eventual sentence. It also closes off the refusal grounds permanently. Which way it cuts depends on the strength of the case in the issuing state, and that assessment requires a lawyer there — which is the whole point of the arrangement described in how a correspondent case is run.
When Italy is the issuing state
If the warrant comes from Italy, the fight has two fronts. In the executing state, the surrender proceedings. In Italy, the underlying measure itself — because behind every EAW there is an Italian precautionary order or a judgment, and both can be challenged in Italy while the surrender proceedings run.
That second front is routinely neglected, and it is often the more productive one: if the Italian measure falls, the warrant falls with it. The Italian remedies are set out in the guide on precautionary measures and review.
Frequently asked questions
Can I refuse surrender under a European Arrest Warrant?
Only on the grounds listed in the framework: amnesty, ne bis in idem, age, limitation, pending proceedings, nationality for sentence enforcement, and the conditions attached to convictions in absentia.
Can I argue that I am innocent?
Not before the executing court. The merits belong to the issuing state; the executing court decides only whether a ground for refusal applies.
How long does the procedure take?
A final decision within 60 days of arrest, extendable by 30. If the person consents, within 10 days. Surrender follows within 10 days of the final decision.
Does prison abroad count towards my sentence?
Yes. Time spent in custody pending surrender is deducted from the sentence eventually imposed in the issuing state.
If a warrant has been executed
The deadlines start on arrest and the first hearing comes fast. Work on both sides has to start in the same week. First contact is free and covered by professional privilege.