How do you prevent the surrender of a person who is the subject of a European Arrest Warrant (EAW) in Austria? From the point of view of the defence, it is important to act quickly, gather targeted information and develop the right strategy. Every moment counts, because European arrest warrants are executed very quickly.
The European Arrest Warrant (EAW) is a key instrument that significantly speeds up the extradition of a wanted person within the EU. While general extradition law in Austria is governed by the Extradition and Mutual Legal Assistance Act (ARGH), the specific provisions on the EAW can be found in the EU-JZG (EU-Justice Cooperation Act). The EU-JZG is therefore the decisive starting point for criminal defence.
Since the introduction of the EAW in 2004, extradition between EU member states has been simplified to ensure that suspects cannot evade prosecution by fleeing to another country. Nevertheless, the EU EAW contains clear provisions on when a surrender can be postponed, particularly if the person concerned is at risk to their health.
Postponement of the surrender of a person
The grounds for postponement can be found in Section 25 EU-JZG. According to Section 25 EU-JZG, various reasons can justify a postponement of the surrender of a person. These are
- Inability of the person concerned to be transported: If the person concerned is unable to be transported for health reasons.
- Danger to life or limb: If there are serious reasons to believe that the handover poses a risk to the health or life of the person.
- Pre-trial detention: The person concerned is subject to ongoing domestic criminal proceedings and is in pre-trial detention.
- Necessary presence in domestic criminal proceedings: The presence of the person is absolutely necessary for domestic proceedings, whether as a defendant or as a witness.
- Pre-trial detention by the tax authorities: If the person is in pre-trial detention by the tax authorities.
- Execution of a custodial sentence or preventive measure: The person must be serving a custodial sentence or a measure involving deprivation of liberty in Austria.
These grounds for postponement are regulated exhaustively in Section 25 (1) EU-JZG.
The most important practical reason: inability to transport and danger to life and limb
From a practical point of view, the protection of the person concerned is at the centre of the examination in accordance with Section 25 EU-JZG. Surrender is not permitted if the person is not fit for transport for medical reasons or if there is a serious risk to life or limb.
The medical assessment is usually carried out by an expert who examines the state of health of the person concerned in detail – however, this requires substantiated evidence! In addition, it is not enough for the person to simply be ill; there must be a significant risk posed by the transport. In some cases, the transport is accompanied by medical personnel, but this alone is not always sufficient to rule out a risk.
The threat to life and limb is strongly reminiscent of the guarantee of fundamental rights in Article 2 of the European Commission of Human Rights. In fact, however, Article 3 of the European Convention on Human Rights (ECHR) should also be brought into play, which has played an important role in the case law of the European Convention on Human Rights in recent years, particularly in the context of extradition. This standard deals with the prohibition of inhuman or degrading treatment. Forced surrender, which could lead to serious harm to health, would violate this article. For this reason, handover can be definitively refused in cases of permanent incapacity for transport or significant health risks.
Practice shows that the hurdles in this regard are set extremely high. Old age and frailty are not enough to stand in the way of extradition – as experience shows in the case of John Demjanjuc’s extradition.
The alibi evidence has (no) relevance (*in that specific stage of the procedure)
A significant difference between traditional extradition law and the European arrest warrant lies in the role of so-called alibi evidence. While in “normal” extradition law, alibi evidence – i.e. proof that the person concerned was in another place at the time of the offence – can in principle prevent extradition because this substantially invalidates the accusation of the offence, this is not an obstacle to the surrender of the person under Section 25 EU-JZG in the context of the European arrest warrant if a European arrest warrant has already been issued.
In traditional extradition proceedings, convincing evidence of an alibi could dispel the suspicion of criminality and thus remove the basis for extradition. In the case of the European arrest warrant, the law does contain corresponding provisions in Section 19 EU-JZG, but these are relevant in a phase in which it is decided whether a European arrest warrant will be issued at all. If a European arrest warrant exists and it is only a matter of executing it – which is the most common case in practice: the person concerned only learns that a European arrest warrant exists against them when it is executed – then their defence must primarily focus on Section 25 EU-JZG. In this phase, substantial objections to the accusation, such as an alibi, do not play a significant role – this becomes highly relevant for the phase after the execution of the European arrest warrant and after the surrender of the person concerned.
Why this is the case is based on the European arrest warrant, which is fundamentally based on mutual trust between the judicial authorities of the EU Member States. It is assumed that the requesting country will take appropriate account of the necessary evidence in the subsequent criminal proceedings.
For the defence, this means that substantial arguments against the accusation, such as alibi evidence, should certainly be put forward in this hectic phase, but are extremely rare in the surrender phase. It is therefore crucial to be prepared for the fact that the European arrest warrant is primarily aimed at the surrender of the person and that objections to the burden of proof only play a role in the subsequent court proceedings.
Practical tip: Hospital documents
In order to prevent surrender, it is essential for the defence to submit relevant medical documents at an early stage in view of Section 25 EU-JZG. Hospital reports, medical certificates and expert opinions on the current state of health of the person concerned play a decisive role in arguing against surrender. These documents should be targeted to credibly demonstrate that there is a risk to life or limb. Detailed medical evidence must be provided to demonstrate a clear risk. The timely submission of such documents is the key to success – a success that is rarely achieved.
