European Arrest Warrant: how surrender works and how it is resisted
The European Arrest Warrant replaced extradition between member states of the Union. A court in the issuing state asks and a court in the executing state decides, with no government in between, and the executing court is not asked whether surrender is appropriate: it is asked only whether a listed ground for refusal applies. The grounds are a closed list, and the procedure runs on strict deadlines that keep the case moving whether or not the defence is ready.
What this means for the person arrested is that arguments about the merits belong elsewhere. Saying the accusation is wrong or the evidence is thin will not be heard by the court deciding surrender, because those questions are for the issuing state. Resistance therefore has to be built on the refusal grounds, on the guarantees owed where a conviction was handed down in absence, and on parallel work by a lawyer in the issuing state.
Avv. Massimo Romano — Ordine degli Avvocati di Napoli n. 14553, patrocinante in Cassazione dal 23/10/2015 — Roma, Via Avicenna 97, 00146 · Milano, Via Giuseppe Pecchio 3, 20129 · Napoli, Corso Umberto I 237, 80138 — +39 335 669 3954
In brief
- Surrender under the warrant is a judicial decision recognised by another judicial authority, which removes the political stage that characterises extradition and compresses the timetable considerably.
- The executing court examines only the listed grounds for refusal, so a defence built on innocence or on weak evidence will be rejected as outside its competence.
- Some grounds for refusal must be applied, some may be applied at the discretion of the executing state, and some operate only if stated guarantees are given.
- For a defined list of offence categories the requirement that the conduct be punishable in the executing state as well is set aside, provided the threshold in the issuing state is met.
- Whether the offence was correctly ticked into such a category is arguable, and that point is frequently taken at the outset of the proceedings.
- Conviction in absence is the ground that arises most often with Italian warrants, because Italian procedure allows a trial to continue without the accused being present.
- Fundamental rights arguments do reach these proceedings, but they have to be made concrete with material about the particular person and the particular conditions awaiting them.
- A warrant issued by Italy can also be resisted from the Italian side, by attacking the underlying measure rather than only the surrender procedure abroad.
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 comparison below sets extradition outside the Union against surrender under the warrant, because clients routinely assume that the familiar extradition features still apply.
| Element | Extradition outside the Union | Surrender under the warrant |
|---|---|---|
| Who decides | A court, and then a government minister who may still refuse. | A court in the executing state, with no political stage. |
| Legal basis | A convention, or reciprocity where no convention exists. | Mutual recognition between judicial authorities of member states. |
| Grounds for resisting | Treaty conditions, constitutional limits and risk of ill-treatment. | A closed list of refusal grounds set out in the framework. |
| Pace of the procedure | Open-ended, often running far longer than the parties expect. | Governed by short deadlines that continue to run regardless. |
| Merits of the accusation | Occasionally examined through a sufficiency requirement. | Not examined at all by the executing court. |
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.
The refusal grounds do not all work in the same way, and the table groups them by the kind of obligation they create for the executing court.
| Ground | How it operates | Note |
|---|---|---|
| Amnesty in the executing state | Refusal is obligatory. | Applies where that state had jurisdiction over the acts. |
| A final judgment elsewhere for the same acts | Refusal is obligatory. | Requires identity of the acts, not merely a similar label. |
| Age below criminal responsibility | Refusal is obligatory. | Measured by the law of the executing state. |
| Limitation under the law of the executing state | Refusal is discretionary. | Available where that state had jurisdiction over the acts. |
| Nationals and residents facing a sentence | Refusal is discretionary. | The executing state may undertake to enforce the sentence itself. |
| Conviction handed down in absence | Refusal depends on guarantees. | Surrender follows only if the stated assurances are given. |
What an arrest on a European warrant does to a life
A person arrested on a European Arrest Warrant is usually at home, at work or at a border, in a country where they have a life. They may have a job, a lease, children, a mortgage and neighbours. The police arrive with a paper issued in another country, and within hours the person is in custody, waiting to be brought before a court that must decide whether to send them to Italy. The speed is deliberate, and it leaves little room for the family to prepare.
The effect on work is immediate. An employer who learns that an employee has been arrested on a foreign warrant may suspend or end the contract. Self-employed people lose clients. Children stay with whoever is available, and school runs, medical appointments and household bills have to be passed to a relative. If the person is the only carer for a dependent adult, the arrangements cannot wait.
The procedure also freezes ordinary plans. Passports are surrendered, travel is restricted, and a person on conditional release may have to report to a police station at set times. The case moves on a tight timetable set by law, and the person is expected to take decisions quickly: whether to consent to being sent to Italy, whether to challenge, and which lawyer to instruct in the country where they are held. Because the Italian case has not yet been heard, the person is in a position that is hard to explain to an employer, a landlord or a school: wanted for a trial, but not yet convicted of anything.
Who arrives on this page
The commonest reader is the person who has just been arrested, or a relative acting for them. They were told that a warrant had been issued in Italy, often in a case they knew about, sometimes in a case they did not. They are in custody in their country of residence and have been asked whether they consent to be sent to Italy. They need to know what the question means, and what happens if they say yes or no.
Another reader is a person who has reason to think a warrant may exist. They received a summons from Italy years ago, or left a country after a trial in their absence, and now fear that any border crossing could end in an arrest. They want to know what can be done in advance, and whether the existence of a warrant can be checked.
A further reader lives in Italy and has received, or fears, a warrant issued by another EU country. The roles are reversed: Italy is now the executing state, and an Italian court will decide whether to surrender the person. They need to understand the grounds on which Italy may refuse, and the strict deadlines that apply. Finally, there are relatives of Italian nationals arrested abroad, who want to know why an Italian cannot simply stay in Italy and what rights they have if they are surrendered.
What to put in the folder in the opening days
- A copy of the warrant, in the form handed to the person at arrest, and any translation provided. Check the names, dates and the description of the offence.
- Identity and residence documents: passport, residence permit, proof of address, proof of how long the person has lived there. They go to the question of release.
- Papers about the underlying Italian case, if any: notices received, judgments, court dates, correspondence with an Italian lawyer. They help to see whether the person was told of the trial.
- Evidence of family and work ties: employment contract, children's school records, medical care for relatives, lease or property.
- Medical records and a list of medicines, to be raised if custody is an issue.
- Documents showing a previous final decision on the same facts, in any EU state, if the person believes they were already tried.
- Proof of any conviction that is said to be the basis of the warrant, with the date and whether the person was present.
- The name of the local lawyer and the date of their appointment, with a note of what was said at the opening hearing.
- A record of any notice you received from Italy, even years ago: envelopes, dates, the address it went to. Whether you were told of the trial can decide the case.
- Proof of travel and whereabouts for the period of the Italian case, such as tickets, work records and rental papers, to show where you were and what you knew.
The decisions that cannot wait
The timetable forces choices that would normally be made over weeks.
Whether to consent to surrender. Consent usually shortens the procedure considerably, and it avoids a long period in custody abroad. The price is that the person gives up the arguments that could be made against surrender, and consent is very hard to withdraw. For someone who wants the Italian case dealt with quickly and has no real ground of refusal, it can be sensible. For someone with a serious objection, it closes the door.
Whether to ask for release while the procedure runs. A court may release a person under conditions if the risk of flight can be managed. Asking requires evidence of ties and a plan, and refusal leaves the person in custody for the whole procedure. The price of asking is limited; the price of not asking is time in custody.
Whether to raise objections to the warrant itself. A warrant that is incomplete, issued for an act that is not an offence in the executing state in a case where that matters, or issued after a trial in absence without proper notice, can be challenged. Each argument must be prepared and supported, and the deadlines leave little room. The local lawyer and an Italian lawyer should assess the grounds together before the hearing, not after.
Two sets of lawyers usually work on a warrant at the same time, and the table divides the tasks so that neither side duplicates nor omits the work.
| Who acts | What falls to them |
|---|---|
| The lawyer in the executing state | The surrender hearing, the refusal grounds, detention pending the decision and any appeal. |
| The lawyer in the issuing state | Attacking the underlying measure, examining the file and pressing for its withdrawal or variation. |
| The executing court | Deciding whether a refusal ground applies and whether guarantees are sufficient. |
| The issuing authority | Supplying the information and assurances requested, or allowing the warrant to fall. |
| The person arrested | Deciding whether to consent to surrender, and gathering material on residence and ties. |
What not to do after an arrest on a warrant
- Do not sign consent without understanding it. Ask for a lawyer and an interpreter, and ask what consent means for the arguments you can still make.
- Do not assume that being an EU citizen protects you. The system is built on mutual recognition, and nationality is not by itself a ground of refusal in most cases.
- Do not rely on a friend's story about another warrant. The grounds depend on the facts and on the law of the executing state.
- Do not talk about the Italian case to other detainees or on recorded phones. Statements may reach investigators.
- Do not hide or flee while a warrant is pending. It will count against you at every later stage, and the warrant will remain.
- Do not post online. It gives both sides material and reveals your whereabouts.
- Do not miss a hearing. The procedure continues in your absence and may be decided without you.
- Do not choose a lawyer who has no contact with Italy. The Italian and local sides must work together, and a local lawyer who cannot reach the Italian file is at a disadvantage.
- Do not give a statement about the facts of the Italian case to the court that executes the warrant. That court decides on surrender, not on guilt, and your account can be sent on to Italy.
- Do not let a family member negotiate with the Italian authorities. Informal contacts can be misunderstood and can prejudice the grounds you may wish to use.
Questions for the local lawyer and the Italian lawyer
- Which authority issued the warrant, on what decision, and for what offence?
- Is the act also an offence in the executing country, and if not, does it fall in a category where that does not matter?
- Was the person present at the trial, or tried in absence, and was proper notice given?
- Are there grounds of refusal that apply: a previous final decision on the same facts, an age limit, a time bar, or the nature of the offence?
- Is there a real risk to the person's basic rights if surrendered, and how can it be shown?
- What are the deadlines, and which of them can be extended?
- If I consent, what remains open after I am in Italy?
- Can the sentence be served in my country of residence, and how and when must that be raised?
- What will happen to my family and my work while the procedure runs?
- Will the Italian authorities be told that I am willing to cooperate or that I contest, and does that affect anything on arrival?
- What measure am I likely to face in Italy after surrender, and what can be prepared in advance to show ties?
Ask the lawyers to put the deadlines in writing, with dates. In a procedure that runs on a clock, the date is the answer.
When judicial systems in different countries have to agree
The European warrant is a conversation between judges in different countries, and the person sits in the middle. The issuing court in Italy and the executing court abroad communicate through forms, and sometimes through a request for more information that stops the clock for a time. The person is told little about this exchange, and the lawyers need to ask for it.
Translation is the most immediate practical issue. The warrant is issued in Italy and translated into the language of the executing state. Errors in translation, particularly in the description of the conduct and of the penalty, can matter, and the defence should read the original and the translation side by side. The person's statements at the hearing are recorded in the local language, and an interpreter is a right.
Coordination is a further issue. The local lawyer is the only person who can appear before the executing court. The Italian lawyer knows the file in Italy and can explain what awaits the person on arrival, including the likely measures after the opening hearing there. If the lawyers do not talk, the person can consent to surrender without knowing that the Italian file offers an argument, or contest surrender on a ground that the Italian file contradicts. Consulates may be informed and may check on the person, but they do not advise on the case. Time zones and post matter, because the deadlines do not move for them. Calls and document exchange should be set up on the day of the arrest, not later.
Italian terms found on a warrant file
- Mandato d'arresto europeo: the European Arrest Warrant, a judicial decision recognised across EU states, used instead of extradition.
- Consegna: surrender, the handing over of the person to the issuing state. It is the word used for the result of the procedure.
- Decisione quadro: the framework decision of the European Union that created the system and set its rules.
- Doppia incriminazione: dual criminality, the requirement that the act be an offence in both states, which is waived for certain categories.
- Motivi di rifiuto: the grounds for refusal, a closed list of reasons for which the executing court may or must refuse.
- Autorità giudiziaria: the judicial authority, which issues and executes the warrant. No government minister takes part in the decision.
- Consenso alla consegna: consent to surrender, which shortens the procedure and is difficult to withdraw.
- Misura cautelare: a precautionary measure, such as custody or house arrest, that may be ordered while the procedure runs.
- Interprete: the interpreter, to whom a person has a right in the proceedings.
- Processo in assenza: a trial held in the absence of the person. Whether the person knew of the trial is often the key to resisting surrender.
- Esecuzione della pena: the carrying out of a sentence, which may be the purpose of a warrant when the trial is over.
- Ne bis in idem: the rule that a person is not tried again for the same facts, a ground that may block surrender.
How the studio acts on a European warrant
The work begins with the warrant itself. We ask for a photograph of the document and of any translation, and we read it for the issuing authority, the offence, the decision it rests on and the person's status in the Italian case. We then speak to the local lawyer, if a lawyer has been appointed, or help the family to find a lawyer admitted in the country where the person is held. We explain who does what, in plain terms.
The engagement is confirmed in writing, with an estimate of cost in phases. Documents can be sent by email as photographs or scans, and nobody has to come to an office. The studio works in English and Italian, and when a relative prefers another language, we arrange an interpreter for the main conversations. We set a channel and a time for updates that suits the family's time zone, and we send a summary after each hearing.
Offices in Rome, Milan and Naples let a lawyer examine the Italian file and prepare for the person's arrival in Italy, including the opening hearing there and the question of precautionary measures. The foreign proceedings are conducted by the local lawyer, who appears and files; we coordinate, supply the Italian material and explain the position to the client. We are reachable outside office hours, because a warrant is executed at any time. We promise no result, because the decision belongs to the court. The email address is avvmassimoromano@gmail.com.
About the lawyer
People write to this office from places where Italian is not spoken, and often with documents they cannot read. That is the starting point of the work rather than an obstacle to it. Avv. Massimo Romano practises criminal law and appears before the Court of Cassation; alongside ordinary Italian proceedings he deals with surrender requests, extradition, and the situation of foreign nationals facing charges in Italy. Send or read out what you have: a notice, a receipt from a search, the name of the prison, a lawyer's letter in another language. He will tell you what the document is and what it obliges you to do. The call is followed by a written note setting out what the office can take on, how the file will be handled between Rome, Milan and Naples, and who in the family will be kept informed. Those conversations are held in English whenever that is what the family needs.
Write on WhatsApp or call. Have ready the identity details of the person concerned and a photograph of every page you have received, in whatever language it is written.
Avv. Massimo Romano — criminal defence lawyer, admitted to the Italian Court of Cassation
Iscritto all'Ordine degli Avvocati di Napoli n. 14553 | Patrocinante in Cassazione dal 23/10/2015
Roma, Via Avicenna 97, 00146 · Milano, Via Giuseppe Pecchio 3, 20129 · Napoli, Corso Umberto I 237, 80138
+39 335 669 3954 · WhatsApp