European Arrest Warrant for an offence committed as a child: Is surrender barred?

Section 9(1) EU-JZG expressly asks whether the requested person was below the age of criminal responsibility under Austrian law “at the time of the act”. It concerns execution of a European Arrest Warrant and makes execution impermissible when that condition is met.

The threshold follows from Section 4(1) JGG and Section 74(1)(1) StGB. A person who has not yet turned 14 is not criminally responsible for an act punishable by law.

The relevant date is the date of the conduct on which the European Arrest Warrant is based. The person’s age at a later arrest, when the warrant was issued or during surrender detention does not replace the comparison with the date of the act.

A warrant may list several allegations or a broad period. The review should then separate the alleged acts and the dates attributed to them. If the fourteenth birthday falls inside the stated period, a general phrase such as “in the summer” is not enough to determine the age issue. The precise allegations and the information available to the court matter.

The JGG contains further rules for young people as well as the rule for children under 14. Section 4(2) JGG covers, among other things, certain cases of insufficient maturity and certain less serious offences. The European Arrest Warrant age ground has a separate meaning under EU law: in C-367/16, the Court of Justice held that the executing court checks the minimum age and need not weigh additional individual conditions for prosecution or conviction.

The judgment C-367/16, Piotrowski, of 23 January 2018 interprets Article 3(3) of Framework Decision 2002/584/JHA. It clarifies the age-based mandatory ground; it does not guarantee surrender. Other legal objections remain separate questions.

Subsection 2 addresses a second question. Do the circumstances justify assuming that the requested person is not punishable for the underlying act because of age under the law of the issuing State? If so, the issuing judicial authority must be informed of those circumstances without delay.

This notification duty is distinct from the Austrian minimum-age test in subsection 1. It depends on the circumstances of the individual case. On its own, it does not say how the foreign proceedings will end or whether another surrender requirement is met.

The age issue requires a reliable date of birth and a clear account of the alleged conduct. An official identity document, the complete European Arrest Warrant and any available translation may help. If there are several allegations, identify the act and alleged period for each one.

If the Austrian court lacks information needed to decide, Article 15(2) of Framework Decision 2002/584/JHA allows it to urgently request necessary supplementary information from the issuing State. A short summary or the person’s present appearance cannot establish age at the time of the act. Do not send sensitive criminal case files or birth records through a general contact form.

A European Arrest Warrant seeks surrender to the issuing EU State. Pre-trial detention in an Austrian criminal case secures proceedings in Austria. Both can involve a loss of liberty, but they rest on different legal frameworks.

Section 9 EU-JZG concerns execution of the European Arrest Warrant. It does not automatically decide every other detention ordered on an independent Austrian legal basis. If a separate detention order exists alongside the surrender proceedings, its specific basis must also be reviewed. For practical first steps in an EAW case, see the guide to surrender detention and first steps.