Further prosecution after EU surrender: speciality in Austria

Austria is the state that issued the European Arrest Warrant and received the requested person, and the other EU Member State is the executing state whose judicial authority authorised surrender. § 31 Abs. 1 EU-JZG protects against prosecution and conviction for a different act committed before surrender that was not covered by the warrant, and the protection also concerns enforcement of a custodial sentence or a preventive measure involving deprivation of liberty.

The protection attaches to a particular surrender and its scope. A new case number therefore proves a violation no more than describing the case as further criminal proceedings does. Which factual acts Austria described in the original warrant and which of those acts the foreign surrender decision authorised must first be established by defence counsel.

The historical conduct constitutes the decisive issue: what act allegedly occurred, when, where and against whom? An additional act is not automatically created by a new offence label or a different assessment of participation. This was confirmed by the Austrian Supreme Court on 3 September 2026 in 15 Os 68/26b. The essential facts in the warrant and judgment matched, and a breach of speciality was not established by the different legal assessment.

For the comparison, the complete description of the conduct, including attachments and supplements, is required. Dates, participants, and individual acts must be considered together. Otherwise clear identity of the conduct need not be defeated by a difference in the alleged period alone. If a separate earlier incident is added, an exception or the required consent must be established for that particular incident.

Under § 31 Abs. 2 Z 3 EU-JZG, two alternatives exist: either the offence prosecuted carries neither a custodial sentence nor a preventive measure involving deprivation of liberty, or the prosecution yields no measure restricting personal liberty. Consequently, the lack of supplementary consent does not establish a general prohibition on every investigation. Conversely, prosecution permissible without a restriction of liberty does not automatically warrant detention for the additional act.

Under Z 4, a separate exception concerns enforcement of a non-custodial penalty or measure, particularly a fine or a financial order. Even where enforcement restricts personal liberty, for example through imprisonment in default of payment, the statute applies this exception. This special rule must not be treated as general permission to enforce an original custodial sentence for an additional act.

Further exceptions may arise subsequent to final release. Protection may be lost by a person who remains in Austria for 45 days while able and permitted to depart. Coverage also extends to voluntary return following departure from Austria or to lawful return from a third state. Time spent in detention does not constitute such an opportunity to leave freely. Consequently, evidence is required regarding the date of release, obstacles to departure, and the circumstances of return.

An express waiver of speciality is not constituted by earlier consent to surrender alone. Both consent to surrender and an express waiver before the executing judicial authority are required by § 31 Abs. 2 Z 6 EU-JZG. The exact wording of the official record matters. Evidence of a waiver is not replaced by a note that a simplified procedure was used.

Following surrender, speciality may be expressly waived by you, or consent may be given to prosecution for specified earlier acts. Pursuant to § 31 Abs. 3 EU-JZG, effectiveness of this declaration is contingent upon its recording by the public prosecutor or a court. You must be informed of the declaration's effects and advised that consultation with defence counsel is permissible beforehand. Prior to the making of a declaration, clarification should be provided regarding its scope, the allegations concerned, and its consequences for liberty.

Where no exception applies, supplementary proceedings are provided for by § 31 Abs. 4 EU-JZG. A new European Arrest Warrant containing the information required by Annex II must be ordered and judicially authorised to supplement the original warrant. With the request for consent and an official record of the affected person's statement taken by the prosecutor or court, it is sent to the executing judicial authority. That consent has been granted is not established by merely sending a request.

The additional allegation must be covered by the foreign consent or state waiver. Relevant declarations by the involved Member States must also be considered; § 2a EU-JZG refers to the European Judicial Network for these. A general assumption that speciality does not apply between EU states is insufficient. Where enforcement of a sentence is authorised only in part, the enforceable portion must also be determined separately.

The original European Arrest Warrant, the complete foreign surrender decision, translations, every consent and waiver record, and any supplementary warrant with the response constitute the necessary documents. Counsel also needs the indictment or new allegation and current detention decisions. Each alleged act must be matched to its surrender basis, and a separate assessment of the act on which each deprivation of liberty rests is required.

The Supreme Court's decision 12 Os 144/25f of 24 March 2026 illustrates the consequences of missing supplementary authorisation. Although the person had consented to surrender, speciality had not been waived. An additional earlier act fell outside the warrant, and neither an exception nor consent was established. Because no supplementary surrender proceedings were pending when judgment was delivered, the Court set aside that conviction and acquitted on that count. This does not promise an acquittal in every additional case.

If you are detained, counsel should promptly assess whether to challenge the detention decision or seek release. An independent detention basis for the act originally covered is not automatically removed by a speciality objection concerning the additional act. The defence should raise the obstacle in good time using the surrender documents while preserving the applicable appeal deadlines.

Different acts committed before surrender are the subject of the protection discussed here. An act committed only afterwards falls outside the temporal restriction in § 31 Abs. 1 EU-JZG. Where the person was instead extradited to Austria from a third state, separate assessment is required for the extradition authorisation, applicable treaties and the ARHG. EU surrender rules cannot simply be transferred to that situation.

Another distinct issue is onward extradition from Austria to a third state, for which § 31 EU-JZG requires consent from the executing state. That state consent is not replaced by a personal waiver of speciality. A person still facing surrender from Austria is also at a different procedural stage from someone already surrendered to Austria.