European arrest warrant: defence in Luxembourg and France

On arrest, the requested person is informed of the warrant and of their rights (article 7): a lawyer in Luxembourg and in the issuing State, free translation, the option to consent, a hearing before a judge. They may notify a relative (article 7-1). The investigating judge decides whether to keep them in detention (article 8); a release application may be filed at any time with the chambre du conseil, which grants it only where real guarantees rule out the risk of evading surrender (article 9).

Consent to surrender, given before a magistrate in the presence of the lawyer, is irrevocable and amounts to an execution decision (article 10). Without consent, the chambre du conseil rules within 20 days of the arrest, in open court unless a closed hearing is requested (article 12). Appeal within 5 days to the chambre du conseil of the Court of Appeal, which decides within 20 days; a cassation appeal is available (article 13). Surrender takes place no later than 10 days after the final decision (article 14).

The Act distinguishes mandatory grounds for refusal (amnesty, final judgment for the same acts, age below criminal responsibility) from optional ones (article 5): pending prosecution in Luxembourg for the same acts, a decision not to prosecute, limitation under Luxembourg law, acts committed in whole or in part on Luxembourg territory. The defence consists in checking the warrant point by point (double criminality outside the list, description of the acts, issuing authority), raising these grounds and, where surrender is unavoidable, obtaining guarantees: return to Luxembourg to serve the sentence, detention conditions, respect for the speciality rule.

In France, the arrested person is brought before the Public Prosecutor General within 48 hours and informed of the warrant and of their right to a lawyer and an interpreter (articles 695-27 et seq. of the Code of Criminal Procedure). They may consent to surrender before the chambre de l'instruction, which then rules within 7 days; otherwise the chamber rules within 20 days, with a cassation appeal. The Prosecutor General may order detention or judicial supervision in the meantime. For a cross-border worker, the central issue is often to remain free until the decision and to arrange a voluntary appearance in Luxembourg.

Where the requesting State is not an EU member, the extradition procedure applies: in Luxembourg, the Act of 20 June 2001 on extradition and bilateral treaties; in France, articles 696 et seq. of the Code of Criminal Procedure, with a decision by the chambre de l'instruction followed by a decree of the Prime Minister. An Interpol red notice is not an arrest warrant but may lead to provisional arrest at a border crossing. Here too, anticipating allows the notice to be challenged before the Commission for the Control of Interpol's Files and the defence to be prepared before any arrest.