When Spanish judicial authorities are looking for a person located in Germany, the mechanism they use is not what most people imagine. There are no diplomatic negotiations, no bilateral government discussions, no lengthy multi-month proceedings. What exists is the European Arrest Warrant — a direct, court-to-court instrument with deadlines measured in days, not months.

For anyone in that situation — or for a family member or adviser supporting them — understanding how that mechanism works is not an academic exercise. It is the difference between acting in time and arriving too late.

Why Classic Extradition Does Not Apply Between Germany and Spain

Classic extradition — that slow, politically mediated diplomatic procedure with wide margins for review — was largely displaced within the European Union when Council Framework Decision 2002/584/JHA came into force. Since then, when one member state seeks a person located in another, it does so through a European Arrest Warrant.

In Germany, that European framework has been incorporated into domestic law through the Act on International Mutual Assistance in Criminal Matters — the IRG — specifically from Section 78 onwards. The result is a direct judicial procedure between courts, without governmental involvement in the main phase, and with a level of substantive review substantially more limited than classic extradition law. For the person affected, that means less time, less room and more urgency.

How a Spanish EAW Reaches Germany

When a Spanish judge issues a European Arrest Warrant, Spain acts as the issuing state. Germany, where the person is located, is the executing state. The warrant is transmitted to German authorities typically through the Schengen Information System — the SIS — which can enable a police arrest almost immediately, anywhere on German territory, without any prior additional formality.

The EAW has a dual legal nature: it is simultaneously the request for arrest and the formal surrender request. No other legal instrument is required. That simplifies the process for the issuing state — and complicates it for anyone who needs to defend against it.

Formal Requirements: The First Line of Defence

For an EAW to be valid and enforceable in Germany, it must contain sufficient and precise information: the identity of the person sought, a description of the offence underlying the warrant, its legal classification under Spanish law, and the sentence imposed or applicable. If any of these elements is insufficient, inaccurate or internally inconsistent, the warrant may be refused or suspended until the issuing state completes or corrects it.

In practice, the formal analysis of the EAW is frequently the first avenue of action for the defence. Warrants issued hastily, with vague descriptions of the facts or with legal classifications that do not correspond to the conduct described, are more common than one might expect — and every formal defect is an argument that can be deployed.

A formally defective EAW is not a minor obstacle: it is a ground for refusal or suspension that the defence must identify and use from the outset. Reviewing the warrant’s formal content is always the starting point.

What Happens After Arrest in Germany

Once the person is arrested in Germany, the police are required to bring them without delay before the competent Amtsgericht — the local court for the district where the arrest took place. There, the court informs them of their rights in the surrender procedure, verifies their identity and decides on provisional custody pending the Oberlandesgericht’s ruling on the admissibility of the surrender.

From that first moment, the right to legal representation and to an interpreter exists and must be exercised immediately. Statements made without a lawyer present, waivers of procedural rights made without understanding their implications, declarations of consent to surrender without having first assessed the available alternatives — all of these can shape the rest of the proceedings in ways that are very difficult to reverse.

The Grounds on Which Germany Can Refuse Surrender

The EAW system rests on the principle of mutual recognition: courts in the executing state do not review the merits of the underlying case but in principle execute the warrant. That principle is not absolute, however, and the IRG provides for both mandatory and discretionary grounds for refusal that the defence can invoke.

Among the most relevant in Spain-Germany cases, the first is the violation of fundamental rights. If there is concrete, verifiable evidence that surrender would put at risk guarantees protected by the European Convention on Human Rights — inhumane conditions of detention, absence of fair trial guarantees, risk of prosecution for extra-criminal reasons — the Oberlandesgericht can and must refuse surrender. The second is the ne bis in idem principle: if the person has already been tried for the same acts in any EU member state, surrender is impermissible. The third is the protection of nationals and habitual residents: German citizens and those habitually resident in Germany benefit from enhanced protection which in certain cases allows the sentence to be served in Germany instead of proceeding with surrender. And the fourth, for offences outside the EAW catalogue, is the absence of double criminality: the conduct must also be punishable under German law.

The Deadlines: The Dimension Most Often Underestimated

The EAW procedure is designed to be fast. The decision on surrender must, as a general rule, be taken within a maximum of sixty days from arrest. If the person consents to surrender voluntarily, that deadline reduces to ten days. Extensions are possible but exceptional, and require specific justification.

Those deadlines leave very limited room to build a solid defence. Identifying the grounds for refusal, gathering the documentation that supports them, coordinating with the person concerned and with their advisers in Spain — all of that must happen in days, not weeks. A law firm that operates simultaneously in both legal systems and has prior experience in the Spain-Germany circuit is not merely an advantage: it is a condition of effectiveness.

Defence in Cases With a Spain-Germany Connection

Barbancho Legal handles EAW and extradition cases regularly, with a particular concentration on matters involving connections between Spain and Germany. We know the Spanish criminal system from the inside — the courts, the prosecutors, the procedural particularities of the central investigating courts when the matter passes through the Audiencia Nacional — and we work in direct coordination with German criminal defence lawyers to build a strategy that is effective on both fronts simultaneously.

In these proceedings, legal representation in Germany and information about the Spanish case that gave rise to the EAW are not two separate things: they are two components of the same strategy. Separating those two components is one of the most common — and most costly — errors in this type of matter.

Frequently Asked Questions

How long can EAW proceedings between Germany and Spain take?

The statutory deadline from arrest to the decision on surrender is a maximum of sixty days, reducible to ten where there is consent. If the defence challenges the warrant, the proceedings can extend with review steps before the Oberlandesgericht and, where applicable, constitutional complaints. In practice, actively defended cases typically resolve within one to three months from arrest.

Can a German national be surrendered to Spain under an EAW?

In principle, yes — though Article 16(2) of the German Basic Law and Section 80 of the IRG establish additional protections for German nationals. In certain cases, particularly where the offence has a connection to German territory, it may be possible to request that the sentence be served in Germany rather than proceeding with surrender. This is one of the arguments the defence should assess from the outset.

What is the difference between an EAW and classic extradition?

Classic extradition is a bilateral procedure of a diplomatic nature, involving the governments of both states, long timelines and significant political discretion. The EAW is a direct judicial mechanism between courts of EU member states, without governmental involvement in the main phase, with very short deadlines and grounds for refusal fixed by law. Whenever the state issuing the warrant is an EU member, the EAW displaces the classic extradition procedure.

Can the Oberlandesgericht refuse a warrant issued by a Spanish court?

Yes. The IRG provides for both mandatory and discretionary grounds for refusal. The most relevant are fundamental rights violations, ne bis in idem, the absence of double criminality for offences outside the catalogue, and the protection of nationals and habitual residents. Identifying which of those grounds apply in the specific case, and establishing them with the appropriate documentation, is the central task of the defence in EAW proceedings.

What happens if the person consents to surrender?

Consent reduces the decision deadline to ten days and eliminates the admissibility review phase. In some cases, consenting can be a strategic option — for example, where there are cooperation arrangements with the Spanish prosecution that make speed advantageous. In others, it is an irreversible mistake. The decision whether to consent should never be taken without first analysing all the circumstances of the underlying Spanish proceedings.