A phone call from the Josefstadt prison in Vienna. An arrest at passport control at Vienna Airport (Wien-Schwechat). A letter revealing that another state is having you searched for through Interpol. From one moment to the next, the issue is no longer an investigation – it is whether you have to leave the country against your will, in handcuffs, towards a state whose justice system you fear.

Austrian law knows two routes by which a person can be handed over to another state: extradition to a non-EU state under the Extradition and Mutual Legal Assistance Act (Auslieferungs- und Rechtshilfegesetz, ARHG), and surrender to an EU Member State on the basis of a European Arrest Warrant under the EU Judicial Cooperation in Criminal Matters Act (EU-JZG). Each procedure has its own deadlines, its own grounds for refusal and its own custody rules – and each offers the defense concrete points of attack.

On this page I explain, as a criminal defense lawyer in Vienna, how an extradition and a surrender procedure (Übergabeverfahren) run, when Austria may extradite and when it may not, which deadlines are the sharpest defense levers – and what an Interpol Red Notice really means. The custody regime for extradition and surrender is a distinct one; it differs from pre-trial detention (Untersuchungshaft, in German) under the Code of Criminal Procedure (StPO).

Extradition or surrender? The two worlds

Whether Austria may hand a person over to another state depends on which state is requesting them. If a non-EU state outside the European Union requests the person, classic extradition law under the ARHG and the relevant treaties applies. If an EU Member State requests them, the surrender procedure under the EU-JZG applies, on the basis of a European Arrest Warrant. The second procedure is faster, tied to fixed deadlines and recognises fewer grounds for refusal, because it rests on the principle of mutual recognition.

This distinction decides almost everything: the deadlines, the question of whether a court or a minister decides in the end, and how far the protection of Austrian nationals reaches. The following table contrasts the two worlds.

Interpol Red Notice: what it is – and what it is not

An Interpol Red Notice is not an international arrest warrant. It is a request to all member countries to locate a person and provisionally arrest them with a view to extradition. Its basis is always a national arrest warrant issued by the requesting state. No country is obliged to arrest or extradite solely because of a Red Notice – every state reviews the matter independently under its own law.

For those affected, the Red Notice is dangerous nonetheless: in practice it is the trigger for the whole chain of events. At a border check, a police check or through an alert in the Schengen Information System (SIS), it leads to an arrest – and in Austria the extradition or surrender procedure follows on from there.

A Viennese example from practice

How this plays out in concrete terms is shown by a decision of the Austrian Supreme Court (Oberster Gerichtshof, OGH 11 Os 46/08m). A Georgian national was wanted under an arrest warrant issued by the Tbilisi City Court. On a request from Interpol Tbilisi he was arrested in Vienna and taken to the Josefstadt prison. There followed extradition custody (Auslieferungshaft) under § 29 ARHG and the extradition proceedings before the Vienna Regional Criminal Court (Landesgericht für Strafsachen Wien), while an asylum procedure was pending in parallel. The person concerned went all the way to the Supreme Court and filed an application for renewal of the proceedings (Erneuerung des Verfahrens) under § 363a StPO – which, in that case, was rejected.

The case is a textbook illustration of the typical sequence: Red Notice, arrest in Vienna, custody, proceedings before the Regional Court – and a legal route that reaches the highest court. How a Red Notice can be deleted through the Interpol commission responsible for it is explained further below in the CCF section.

How an extradition or surrender procedure runs

From the first hit in the international search to the decision, the procedure passes through four phases. Each phase offers points of defense – the earlier a defense lawyer is involved, the greater the room for manoeuvre.

Requirements for extradition (§ 11 ARHG)

Only a person who is alleged to have committed an offence of a certain gravity may be extradited. For extradition for the purpose of prosecution, § 11 ARHG requires an intentional act that is punishable by more than one year’s imprisonment both under the law of the requesting state and under Austrian law. That is the twofold requirement of dual criminality and a minimum-penalty threshold.

Dual criminality

The act must be punishable under both legal systems. What the requesting state prosecutes but which is no offence at all in Austria does not justify extradition. This is a genuine point for the defense to test: not every foreign criminal provision has an Austrian counterpart.

The penalty threshold

For extradition for prosecution, the offence must carry more than one year’s imprisonment. Where it is a matter of enforcing a sentence already imposed, extradition is admissible under § 11 para 2 ARHG only if at least four months remain to be served. Extradition can additionally (accessorily) be granted for further, less serious offences if the main offence meets the threshold (§ 11 para 3 ARHG).

When extradition is inadmissible

The ARHG sets out a whole catalogue of bars to extradition. They are the heart of the defense, because they force the court to examine the requesting state and the conditions there. The most important:

• Political offences (§ 14 ARHG): criminal acts of a political character are in principle exempt from extradition.
• Military and fiscal offences (§ 15 ARHG): these too are subject to special restrictions.
• Rule-of-law principles and asylum (§ 19 ARHG): extradition is inadmissible if the criminal proceedings in the requesting state would not comply with the principles of Articles 3 and 6 ECHR, if the penalty would be enforced in a manner contrary to Article 3, or if the person would be persecuted on account of their origin, religion, nationality or political opinion (extradition asylum).
• Threat of the death penalty (§ 20 ARHG): where an act is punishable by death, extradition is admissible only if it is guaranteed that the death penalty will not be imposed. For the enforcement of a death penalty it is always inadmissible.
• Cases of hardship (§ 22 ARHG): personal circumstances can stand in the way of extradition.

Especially where requests come from states with documented rule-of-law deficits, § 19 ARHG is the central lever. Here, country reports, reports of the Committee for the Prevention of Torture (CPT) and human-rights documentation become evidence. In politically charged cases this overlaps with the accusation of terrorism (in German) – there, examining the true motives behind the request is particularly important.

The European Arrest Warrant (EU-JZG)

Within the EU the European Arrest Warrant replaces classic extradition with a faster surrender procedure. It can be issued for the purpose of prosecution where the offence carries an upper limit of at least one year imprisonment in the issuing state, and for the enforcement of a sentence where at least four months remain to be served (§ 4 EU-JZG).

Listed offences: no dual-criminality check

The decisive difference from classic extradition: for 32 categories of offence listed in Annex I Part A of the EU-JZG – such as terrorism, human trafficking, drug trafficking – dual criminality is no longer examined, provided the offence carries at least three years in the issuing state (§ 4 para 3 EU-JZG). A literal correspondence of the legal terms is not required (§ 4 para 4 EU-JZG).

Grounds for refusal in the surrender procedure

Surrender, too, is not unconditional. The EU-JZG has its own grounds of inadmissibility and refusal, including the Austrian place of commission (§ 6), Austrian jurisdiction (§ 7), criminal minority (§ 9), limitation and amnesty (§ 10) and judgments in absentia (§ 11). For fiscal offences, by contrast, the grounds for refusal are expressly restricted (§ 12 EU-JZG). The most important defense lever is the violation of fundamental rights (§ 10a EU-JZG).

This provision transposes the case-law of the Court of Justice of the European Union into national law. In the decisions in Aranyosi and Căldăraru (C-404/15 and C-659/15 PPU), the CJEU developed a two-stage test for conditions of detention: first it must be clarified whether there are objectively established systemic deficiencies in the issuing state; then, whether the person concerned would specifically face a real risk of inhuman or degrading treatment. In the decision in „LM“ (C-216/18 PPU), the CJEU applied the same two-stage test to the right to a fair trial where the independence of the judiciary is deficient. These are the sharpest lines of argument against surrenders to Member States with rule-of-law deficits.

Austrian nationals: § 12 ARHG vs. § 5 EU-JZG

For Austrian nationals, the most important difference between the two worlds applies. Towards non-EU states the protection is absolute; within the EU it is weakened.

An Austrian national is therefore never extradited to a non-EU state. All that is admissible is a temporary transfer for individual procedural acts or mutual-legal-assistance purposes – not a final extradition (§ 12 para 2 ARHG).

Within the EU this does not apply absolutely

In relation to EU Member States the surrender of an Austrian national is in principle possible – but subject to conditions (§ 5 EU-JZG, likewise a constitutional provision). Surrender is inadmissible for offences that fall within the scope of Austrian criminal law (§ 5 para 2), and for the mere enforcement of a sentence (§ 5 para 4) – in that case Austria enforces the sentence itself. Where an Austrian is surrendered for prosecution, this happens only subject to a guarantee of return (Rücküberstellungsvorbehalt): after a conviction in the issuing state, the person must be returned to Austria to serve the sentence (§ 5 para 5 EU-JZG). Many overlook this distinction – it is of decisive importance for Austrian nationals in the EU context.

Custody & deadlines as defense levers

In extradition and surrender proceedings, deadlines decide. They limit custody and set the authorities a time window. Whoever knows them can apply for release and file appeals in a targeted way. Surrender custody (Übergabehaft) follows the same rules as extradition custody: § 18 EU-JZG expressly refers to § 29 ARHG.

The two custody limits in § 29 para 6 ARHG are the most important: beyond six months, extradition custody may be maintained only if the proceedings are particularly difficult or extensive and the offence is a serious offence (Verbrechen). And after one year at the latest, the person concerned must in any event be released if the Federal Minister of Justice has by then neither granted nor refused extradition. Extradition custody is also subsidiary: it may not be imposed if its purposes are already achieved by simultaneous pre-trial or post-conviction custody (§ 29 para 2 ARHG).

Remedies & defense strategies

An appeal to the Higher Regional Court (Oberlandesgericht) lies against the decision on the admissibility of extradition. Where the ruling is pronounced orally, the appeal must be filed within three days and the grounds must be submitted within fourteen days of service of the written version. It has suspensive effect (§ 31 para 6 ARHG). These three days are the tightest and most important moment in the whole procedure – whoever misses them loses the ordinary legal route.

The two-tier system for non-EU states

In extradition to a non-EU state, the Regional Court (Landesgericht) first decides on the legal admissibility (§ 31 ARHG). Only then does the Federal Minister of Justice decide on whether to grant it in fact (§ 34 ARHG). With the European Arrest Warrant this second tier does not exist – here the court alone decides (§ 21 EU-JZG). This opens different points of attack: in an extradition, arguments can still be made at the ministerial level.

The EU citizen in a non-EU request (Petruhhin)

For citizens of other EU states living in Austria there is a special protection. If such a Union citizen does not consent to simplified extradition to a non-EU state, the court must notify their home Member State and give it the opportunity to take over the prosecution itself by means of a European Arrest Warrant (§ 31 para 1a ARHG). With this, the CJEU created in the decision in Petruhhin (C-182/15) a genuine alternative to extradition to the non-EU state.

Extraordinary remedies

Alongside the appeal to the Higher Regional Court, extradition cases can involve the extraordinary route of renewal of the proceedings under § 363a StPO before the Supreme Court – a remedy based on alleged violations of fundamental rights. It was attempted in the Viennese case described above (11 Os 46/08m). Whether it succeeds depends on the individual case and belongs in experienced hands. What matters is this: the protection of fundamental rights does not end at the Higher Regional Court.

Deleting an Interpol Red Notice: the CCF procedure

An Interpol Red Notice can be challenged and deleted. The body responsible is the Commission for the Control of INTERPOL’s Files (CCF), an independent commission at Interpol. On application, it examines whether an alert breaches Interpol’s rules, and it can order its deletion or correction.

The strongest ground for deletion is Article 3 of Interpol’s Constitution. It prohibits any activity of a political, military, religious or racial character. Where a Red Notice is in truth politically motivated, it breaches this fundamental rule. Further grounds are incorrect, incomplete or no longer relevant data.

How a CCF request works

The application for deletion or correction is filed with the CCF. On an admissible request for deletion, the competent chamber of the CCF decides, in principle, within nine months from the point at which the request is treated as admissible. Because a deletion takes time and the alert remains in place until then, the defense against the Red Notice and against ongoing extradition or surrender proceedings in Austria should be conducted in parallel – not one after the other.

After the arrest: the first steps

When a person is arrested in Austria on the basis of an international search, much is decided in the first hours. The most important steps, in the right order:

1. Stay silent. No one has to give evidence on the substance. The person concerned must be informed of the accusations and may consult a defense lawyer beforehand (§ 29 para 3 ARHG). Use this right.
2. Bring in a defense lawyer. Anyone who has none must be assigned one ex officio when extradition custody is imposed (§ 29 para 4 ARHG). Better still is a self-chosen lawyer specialised in extradition law.
3. No consent to simplified extradition without advice. It is irrevocable and costs the protection of specialty (§ 32 ARHG). This decision belongs at the very start of any strategy.
4. Check release and deadlines. An application for release is possible at any time; the custody limits of § 29 para 6 ARHG and the decision deadlines of § 21 EU-JZG must be monitored continuously.
5. Examine the requesting state. Where conditions of detention contrary to Article 3 ECHR, an unfair trial or political persecution threaten there, § 19 ARHG or § 10a EU-JZG is the line of defense – supported by country reports as evidence.

The connection with the rest of the criminal proceedings – such as an arrest (in German), an investigation (in German) or a house search (in German) – must always be kept in mind.

Frequently asked questions on extradition and the European Arrest Warrant

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