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  • Matteo Zamboni

The appropriate occasion has now arisen: CJEU on the meaning of "issuing judicial authority"

Updated: Jun 9, 2022

With a judgment of 27 May 2019, the Court of Justice of the European Union, in its Grand Chamber composition, held that ‘[t]he concept of an ‘issuing judicial authority’, within the meaning of Article 6(1) of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, as amended by Council Framework Decision 2009/299/JHA of 26 February 2009, must be interpreted as not including public prosecutors’ offices of a Member State which are exposed to the risk of being subject, directly or indirectly, to directions or instructions in a specific case from the executive, such as a Minister for Justice, in connection with the adoption of a decision to issue a European arrest warrant’.

On this basis, the Court excluded that the Public Prosecutor’s Office in Lubeck (Germany) and the Public Prosecutor’s Office in Zwickau (Germany) met one of the requirements to be regarded as ‘issuing judicial authorities’ for the purpose of the Framework decision: ‘namely, the requirement that it be guaranteed that they act independently in issuing [an] arrest warrant’ (see para 88 of the Judgment).

This is so because, under the German law on the Judicial System, Public Prosecutors receive (and must comply with the) instructions from the executive – the Federal Minister of Justice and the Land authority for the administration of Justice for Federal and Land prosecutors respectively.

The judgment of the Court of Justice resolves around the principle of mutual trust between the Member States, a principle that only works where Member States issue EAWs in accordance with the Framework Decision: that is to say, only where EAWs are issued by a ‘judicial authority’ within the meaning of Article 6(1).

In the Court’s reasoning, this necessity outweighs the ‘principle of procedural autonomy’ and requires the concept of ‘judicial authority’ to have a ‘uniform’ interpretation throughout the European Union (see paras 48-49 of the Judgment).

Against this background, the Court acknowledged that the concept of ‘judicial authority’ within the meaning of the Framework Decision can be broader than that relied on by national legislations and, thus, include authorities that, albeit different from judges and courts, still participate in the administration of criminal justice (see para 50 of the Judgment).

In principle, then, the Court does not set obstacles to the possibility, for Public Prosecutors, to issue EAWs – especially prior to judgments, when the European Arrest Warrant is issued for the purpose of conducting a criminal investigation (see para 59-59 of the Judgment). At the same time, it makes it very clear that this is true only insofar as these authorities fulfil the requirement of independence, since only the existence, in the legal system of the Member State issuing the EAW, of ‘statutory rules and an institutional framework capable of guaranteeing that the issuing judicial authority is not exposed […] to an instruction in a specific case from the executive’ would allow the authorities of the Member State receiving the EAW to execute it pursuant to the principle of mutual trust (see para 74 of the Judgment).

Ultimately, that is the only guarantee that the decision to issue the EAW by the issuing authorities ‘meet in full the requirements inherent in effective judicial protection’, thus ensuring the respect of the procedural and fundamental rights of the requested person and the compliance with the principle of proportionality.

This argument is developed in the Opinion delivered by the Advocate General on 30 April 2019. Indeed, the AG notices that, once an EAW is issued, the requested person faces a long deprivation of liberty (up to 120 days) in the executing Member State. The latter, however, has a minimal possibility to review the lawfulness of this detention, being in general required to give effect to the EAW pursuant to the principle of mutual trust.

For this reason, the AG concludes that, under EU law,

‘the concept of ‘judicial authority’ is equivalent to ‘judicial branch’ (that is to say, independent body) where the exercise of public authority may give rise to such significant harm to individual liberty, such as the one involved in the procedure for executing an EAW, the origin of which is necessarily the judicial authority that issued it’ (see para 93 of the Opinion of the AG).

Intuitively, this is the best interpretation to ensure that the simplified system of surrender introduced by the Framework Decision with the aim to ‘de-politicise’ extradition proceedings within the European Union does not turn into a mechanism capable to overlook the procedural and fundamental rights of the requested individuals.

Admittedly, the Grand Chamber of the Court of Justice of the European Union does not go as far as the Advocate General. The judgment is carefully phrased and does not imply general conclusions. While the opinion of the Advocate General seems to rule out, once and for all, the possibility for Prosecutors to issue EAWs, the judgment explicitly leaves open that possibility – provided, of course, that the Prosecutors of a given Member State enjoy the required standard of independence.

This conclusion is confirmed by the fact that, in another judgment published on the same 27 May 2019 in case C-509/18, the Court of Justice held that the EAW issued by the Prosecutor General of Lithuania is valid under the Framework decision, for the Prosecutor General is to be considered a ‘judicial authority’ within the meaning of Article 6(1).

Evidently, the different outcome of the two cases depend upon the guarantees of independence enjoyed by Public Prosecutors in the different Member States under national law: the closer to the German model (as, for example, Poland) the more likely that Prosecutors will not be considered ‘judicial authorities’ for the purpose of issuing EAWs. To the contrary, the conclusions reached by the Court in the case concerning Lithuania will be used to argue that Prosecutors who enjoy a strong degree of functional and institutional independence will continue to be empowered to issue these warrants.

Yet, the judgment brings about the odd situation in which, while a Country that has already vowed to leave the Union, like the United Kingdom, is to-date capable of issuing valid EAWs under the Framework decision, Germany will have to amend its legal system in order to continue to do so.

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