European Arrest Warrants and independence of public prosecutors

EU Law Analysis: CJEU: European Arrest Warrants and independence of public prosecutors

CJEU: European Arrest Warrants and independence of public prosecutors

Julia Burchett, PhD
candidate at the Université libre de Bruxelles and the University of Grenoble
The European
Arrest Warrant
, regularly presented as “the flagship” of EU criminal law,
is in practice one of the most used mechanisms (if not the most used) of
judicial cooperation in criminal matters. It consists of a simplified cross-border
judicial surrender procedure for the purpose of prosecuting or executing a
custodial sentence or detention order, thus replacing the traditional cooperation
system involving political authorities from the Member States.
On 27 May 2019,
the European Court of Justice (ECJ) provided further clarifications to the long-standing
question regarding the definition of a « judicial authority » competent to
issue an EAW, and ruled on the independence required to be regarded as such
under EU law. It brought an answer to the doubt concerning the capacity of the
Public Prosecutor’s Offices of the Member States to issue EAWs, a doubt raised
notably by the opinion
of Advocate General Campos Sánchez-Bordona in the Özçelik case in 2016 (C-453/16 PPU, para 45).
In two separate
judgments, the Court distinguishes the German
public prosecutor’s offices
, which do not provide a sufficient guarantee of
independence from the executive for the purpose of issuing a European Arrest Warrant
(Joined Cases C-508/18 and C-82/19 PPU), from the Prosecutor
General of Lithuania
, which provides such a guarantee (Case C-509/18).
The cases were
brought before the ECJ by the Irish Courts after three defendants challenged
the validity of the EAWs issued against them. They argued that the Public
Prosecutor’s offices in Germany (in Lübeck and in Zwickau) and the Lithuanian Prosecutor
General cannot be regarded as a ‘judicial authority’ within the meaning of
Article 6(1) of the EAW Framework Decision, in so far as they do not enjoy
sufficient independence from the executive power.
After discussing
the main issues raised in the Court’s judgments, this contribution will address
briefly their consequences, in particular for the German State, and the EU area
of Criminal Justice.
Summary of the Court’s reasoning
The Court starts
its judgment by preliminary remarks emphasizing the crucial function of the principle
of mutual recognition, on which is based the EAW. Considered as a ‘cornerstone’
of the Area of Freedom, Security and Justice (AFSJ), the principle of mutual
recognition is itself grounded on mutual trust, which lies on the assumption
that all the Member States comply with EU law, in particular with fundamental
rights recognized by EU law. While stressing the fundamental importance of these
two principles and their implications within the context of the execution of an
EAW, the Court states that “the principle of mutual recognition proceeds from
the assumption that only European arrest warrants, within the meaning of
Article 1(1) of Framework Decision 2002/584 must be executed in accordance with
the provisions of that decision”. In other words, since an EAW is a judicial
decision, only EAWs validly issued by a judicial authority should be executed.
The Court then proceeds
in two steps to determine whether the authorities at stake may be regarded as a
‘judicial authorities’ for the purpose of issuing an EAW.
A broad interpretation of the notion of ‘judicial
The first step
consists of clarifying the scope of the notion of ‘judicial authority’. In this
respect, the Court has already ruled in a trilogy of cases in 2016 (discussed here)
that issuing Member States do not have absolute discretion, as the term
requires an autonomous and uniform interpretation throughout the European Union.
As the ECJ has
already stated in the 2016 judgments in Poltorak
(C-452/16 PPU, para 33) and Kovalkovas
(C-477/16 PPU, para 34), the words “judicial authority” must not be interpreted
strictly as referring only to the judges or courts of a Member State, but as encompassing
more broadly “the authorities participating in the administration of criminal
justice in that Member State”, such as Hungarian prosecutors (Özçelik
Case C-453/16 PPU). This broad interpretation is supported by the rationale of
the EAW which aims to facilitate free movement of judicial decisions, including
those prior to judgment, in respect of the conduct of criminal proceedings.
In view of the
functions performed by the prosecutors in these three cases, the Court considers
that this criterion is easily fulfilled, as the authorities in question play an
essential role in the conduct of criminal proceedings in their respective
Member State.
A strict interpretation of the requirement of
What is more
controversial is the second requirement that the issuing judicial authority
must act independently from the executive power when issuing an EAW. Pursuant
to the principle of separation of powers, this fundamental requirement aims to
ensure that the rule of law prevails and that the fundamental rights of the
person requested are protected effectively, in the absence of any political considerations.
In the 2018 LM case (C-216/18 PPU), discussed here,
the ECJ has already highlighted the importance of judicial independence within
the context of EAW, this is particularly important insofar as such mechanism
allows for deprivation of liberty of the person concerned.
Thus, the Court,
relying on EU applicable protection standards, examines whether the authorities
at issue are capable to afford a sufficient level of judicial protection in
issuing a EAW.
In this respect,
the Court recalls that the EAW mechanism is based on a dual level of protection
of procedural rights and fundamental rights, referring to another 2016 judgment
about the distinction between national arrest warrants and EAWs (Bob-Dogi
C-241/15, para 56). It requires effective judicial protection of the right of
the person concerned to be granted at the moment a national arrest warrant is
made and at the stage when an EAW is issued. While it is the responsibility of
the ‘issuing judicial authority’ to guarantee that second level of protection, the
Court requires it to be able to exercise its responsibilities objectively and independently.
“That independence requires that there are statutory rules and an institutional
framework capable of guaranteeing that the issuing judicial authority is not
exposed, when adopting a decision to issue an arrest warrant, to any risk of
being subject, inter alia, to an instruction in a specific case from the
executive”. It logically follows that an organ from the executive cannot be designated
as an issuing judicial authority (Kovalkovas
C-477/16 PPU, para 48).
The Court
proceeds to test those requirements against the situation of the German and
Lithuanian public prosecutors’ offices. This stage marks the distinction
between the two judgments. In the case of the two German EAWs (C-508/18
and C-82/19 PPU
), German public prosecutors’ offices do not meet the
requirement to act independently from the executive in issuing an EAW. This is
part of the German prosecution hierarchical structure in which the Minister for
Justice has an external power to issue instructions to the prosecuting
authorities in question, which may have a direct bearing on a decision to issue
an EAW. Despite the arguments put forward by the German government that such
power of instruction is circumscribed by German law, these guarantees are
considered insufficient by the Luxembourg Court. As a result of this strict
interpretation, German public prosecutors will no longer be allowed to issue
EAWs until a reform is made. In contrast, concerning the Lithuanian EAW case, the
General Prosecutor of Lithuania is considered to offer sufficient guarantees of
independence from the executive in carrying out his duties of issuing an EAW.
With these
judgments, the CJEU further develops its jurisprudence regarding the
functioning of the EAW in an Area of Criminal Justice, in which mutual trust must
not be confused with “blind” trust. As evidence by recent cases (LM
C-216/18 PPU ; Joined Cases C-404/15 and C-659/15 PPU Aranyosi
and Căldăraru
, also discussed here
and clarified by the 2018 judgment
in ML), a more balanced approach
between the fundamental rights of the person to be surrendered and the EU’s
goal to guarantee free movement of judicial decisions seems to be taken by the
Court, an orientation that appears to be confirmed by these cases.
Beyond the
impact upon the individuals concerned by EAWs, the Court’s decisions are contributing
significantly to clarifying the notion of “judicial authority” and to giving it
an autonomous EU definition. Firstly, in line with its previous rulings, it confirms
that this notion may extend beyond courts to include Public Prosecutor’s
Offices, thus taking an opposite view from that expressed by the opinion
of Advocate General Campos Sánchez-Bordona (joined cases OG C-508/18 and PI
C-82/19 PPU, para 51). Secondly, in relation to EU fundamental rights protection
standards, it clarifies the guarantees arising from the role of an “issuing judicial
authority”, namely the requirement of independence.
Although this is
a notable step towards effective judicial protection, it involves new issues to
consider for the competent authorities of the Member States. It implies that
executing authorities receiving EAWs will have to verify whether the issuing
authorities qualify as independent judicial authorities, within the meaning of
the ECJ case-law, prior deciding on the surrender of the requested person. The
European Judicial Network (EJN) website has already made information available
for this purpose based on answers provided by some EU Member States (Austria,
Denmark, Germany, Italy, Sweden). As stated in a note
issued by the German delegation concerning the consequences of the ECJ’s
judgment, “Germany will adjust the proceedings to issue a European Arrest
Warrant. From now on, European Arrest Warrants will only be issued by the courts.
This can be achieved without changing the existing laws.” While consequences to
be given to the lack of independence of prosecutors remain to be seen, the
German delegation asked and suggested that the other Member States “decide,
whether an existing European Arrest Warrant that has been issued and signed by
a German prosecutor could be accepted as grounds for keeping a person in
detention according to Article 12 of Council Framework Decision 2002/584/JHA.
In such cases, the German court responsible for issuing a European Arrest
Warrant would be required to assess within a very short-time frame whether the
requirements for issuing a warrant are fulfilled”. A first
and second
series of notes from other Member States have followed.
Thus, these judgments
will have a crucial impact, not only in Germany, but also beyond, affecting the
EU area of criminal justice as a whole.  It
implies a need to evaluate and eventually reform the organization of the
criminal justice system in certain Member States.
Barnard &
Peers : chapter 26
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