Two European arrest warrants: which state receives the person?

Requests from two or more Member States seeking execution of European arrest warrants against the same person are covered by § 22 Abs. 1 EU-JZG. A decision by Austria on which warrant to execute first is required. No free choice of the receiving state is given to the person concerned by the provision. Legally relevant reasons that can be substantiated from the documents are needed for a proposed sequence.

Which requests actually exist and whom they concern must first be established. That two states are requesting surrender is not necessarily indicated by two file numbers. Priority must also be distinguished from whether each surrender is legally permissible. Scrutiny of a warrant’s statutory requirements is not replaced by giving that warrant priority, and another request is not automatically disposed of by handling it later.

The seriousness of the offence, the place where it occurred, and the time of the warrant’s issuance are expressly identified by the law. The purpose also matters: criminal prosecution or execution of a custodial sentence or preventive measure involving deprivation of liberty. Together, these factors must be assessed. Neither fixed priority for the more serious offence nor automatic preference for a sentence already imposed is established by § 22 Abs. 1 EU-JZG.

Keeping each state’s allegations distinct is required for a reliable comparison. What conduct allegedly occurred, where did it occur, which issue date is documented, and what decision underlies the warrant? Little assistance is offered here by broad descriptions of dangerousness or the date of arrest. To enable the court to weigh the case on an accurate factual basis, the defence needs to identify unclear information and inconsistencies.

Where surrender to the first issuing state is subject to the speciality rule, § 22 Abs. 2 EU-JZG requires a simultaneous decision on the permissibility of onward surrender to execute the other warrant. Prosecution for other earlier offences is generally limited by speciality. Where requests compete, it must also be established whether the person may subsequently be surrendered to the other state.

Therefore, the whole subsequent course is not explained by the decision identifying the first state. Further proceedings and deprivation of liberty can be enabled by permissible onward surrender; this does not, in itself, mean immediate transfer. The operative decision on both requests should be reviewed by the defence to establish which conditions and obstacles were considered for onward surrender. Under § 22 Abs. 3 EU-JZG, communication of the decisions to all Member States involved is required.

Separate significance attaches to consent for simplified surrender. § 20 Abs. 2 EU-JZG provides that this simplified surrender has no speciality effects. Where several warrants exist, a discussion regarding which warrant the consent concerns and how it may affect further prosecution and surrender is required before making a declaration.

The desire for a swift end to Austrian detention does not answer these questions. Further deprivation of liberty in the other state may be involved in surrender. Arrange a joint review of the available warrants, information about your rights, and court records. If a declaration has already been made, prompt examination is required for its precise wording and the resulting court decision.

Where a European arrest warrant competes with an extradition request from a state outside the EU, § 23 EU-JZG applies. In principle, priority is decided by the Federal Minister of Justice, who weighs the circumstances under § 22 Abs. 1 and takes the applicable international agreements into account. The court decides on execution of the European arrest warrant and submits the files with the required extradition decision to the Ministry of Justice.

An important exception is contained in § 23 Abs. 3 EU-JZG: priority is given to the European arrest warrant if the offence underlying it is inseparably linked to an offence in the extradition request. The extradition proceedings must initially be interrupted and must be terminated after surrender. A specific comparison of the offences is required to establish such a link. A shared name or similar allegations do not, by themselves, substantiate it.

The complete warrants with translations, the underlying decisions, and the Austrian decisions made so far are required for legal assessment. For each state, the alleged conduct, location, issue date, and purpose of the proceedings must be clearly identified. Available assurances, service documents, and declarations concerning consent or speciality must also be recorded. Documents can be organised by relatives, and accounts of the criminal allegations should be coordinated through the defence.

An opinion from Eurojust may be sought by the court before deciding. Cooperation between judicial authorities is supported by this European body, which can advise on competing requests. The Austrian decision is not replaced by its non-binding advice. A reasoned sequence together with scrutiny of onward surrender is sought by the defence. Neither a particular receiving state nor release can be inferred merely from the number of warrants.