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The European Court of Justice delivered a judgment to clarify the question of defining judicial authority competent to issue a European Arrest Warrant, and ruled on the sufficient guarantee of independence required to be regarded as such under EU law. 

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The District Court of Larnaca referred four preliminary questions to the European Court of Justice (ECJ) under Article 267 of the Treaty on the Functioning of the European Union (TFEU) regarding the independence and impartiality of Hamburg Public Prosecutor’s Offices (Staatsanwaltschaft Hamburg) and the ECJ delivered a judgment on the said matter in joined cases C-508/18 and C-82/19 PPU on 27th of May 2019.

The European Arrest Warrant Case

On 26th of November 2018 an arrest was made under a European Arrest Warrant (EAW) which was issued by Hamburg Public Prosecutor’s Office instead of a judicial authority (Court).  Two German experts testified in court as to whether Hamburg Public Prosecutor’s Office is a judicial authority under the framework decision on the EAW (2002/584/JHA) (framework decision) and whether it guarantees the independence provided by a court or whether it falls under the executive power.

In light of the testimony given at the Court, an application to refer preliminary questions to the ECJ under Article 267 of TFEU was made.  It was argued that the German public prosecutor’s offices and more specifically, the Hamburg Public Prosecutor’s Office are not competent to issue a EAW on the ground that they are not a ‘judicial authority’ within the meaning of the framework decision. It was argued that the German public prosecutor’s offices are not independent of the executive since they are part of an administrative hierarchy headed by the Minister for Justice, and there could be a risk of political involvement.

The decision of the Cypriot Court

The District Court of Larnaca, having considered all arguments, relevant legislation and the relevant caselaw decided to submit four preliminary questions to the ECJ for an interpretation of the framework decision under Article 267 TFEU. It should be noted that this was the first time a Cypriot Court referred preliminary questions to the ECJ in relation to a EAW matter.

The decision of the ECJ

On the 30th of April 2019 the Advocate General of the European Union delivered his opinion on this matter and on the 27th of May 2019 the ECJ delivered its judgment. The ECJ held that the concept of a ‘judicial authority’, within the meaning of the framework decision, does not include public prosecutor’s offices of a Member State, such as those of Germany, which are exposed to the risk of being subject, directly or indirectly, to directions or instructions in a specific case from the executive power, such as a Minister for Justice.

The ECJ notes that the principle of mutual trust and recognition between the Member States proceeds from the assumption that only a EAW which meets the requirements of the framework decision must be executed. Thus, since a EAW is a ‘judicial decision’, it must, in particular, be issued by a ‘judicial authority’.

According to the ECJ, the German public prosecutor’s offices, which have an essential role in the conduct of criminal proceedings, are capable of being regarded as participating in the administration of criminal justice. Furthermore, the ECJ finds that the German legislation does not prevent their decisions to issue a EAW from being subject, in a given case, to an instruction from the Minister for Justice of the relevant Land. Accordingly, those public prosecutor’s offices do not appear to meet one of the requirements of being regarded as an ‘issuing judicial authority’ within the meaning of the framework decision, namely the requirement of providing the judicial authority responsible for execution of an EAW with the guarantee that they act independently in issuing it.

Concept of ‘Judicial Authority’

According to the decision of the ECJ, although, the Member States may designate, in their national law, the ‘judicial authority’ with the competence to issue a EAW, the meaning and scope of that term cannot be left to the assessment of each Member State, but must be the same throughout the EU. The concept of a ‘judicial authority’ is not limited to designating only the judges or courts of a Member State, but must be construed as designating, more broadly, the authorities participating in the administration of criminal justice in that Member State, as distinct from, inter alia, ministries or police services which are part of the executive.

The authority responsible for issuing a EAW must act independently in the execution of its functions and must be capable of exercising its functions objectively without being exposed to the risk that its decision-making power be subject to external directions or instructions, in particular from the executive.

Conclusion

The aforementioned decision is of great importance for all the EAW cases where the EAW is issued by a so-called judicial authority which is not independent. In cases where it is found that the issuing authority of a EAW is not judicial then the whole procedure is void. Full judgement can be found in the below link:

 http://curia.europa.eu/juris/liste.jsf?num=C-508/18&language=EN

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