The ECJ was called to deal with the question of whether prosecutors could qualify as “issuing judicial authorities” within the meaning of Framework Decision 2002/584 and, if so, how to assess the independence of a public prosecutor from the executive.
In a set of twin judgments, the ECJ reached different findings vis-à-vis Germany and Lithuania. While prosecutors in Germany were held to be exposed to the risk of being influenced by the executive in their decision to issue an EAW (see a comment here), the ECJ ruled that the Prosecutor General of Lithuania may be considered as an “issuing judicial authority” insofar as his legal position safeguards not only the objectivity of his role, but also affords him a guarantee of independence from the executive.
The requirement of independence is what truly sets the dizygotic twins of Germany and Lithuania apart. The ECJ firmly established that the mere fact that a prosecutor may be subject to external influence, especially from the executive, in discharging his functions prevents him from qualifying as a “judicial authority” for the purposes of issuing an EAW.
This is a firm reinstatement of how the principle of separation of powers between the executive and the judiciary grounds the legal structure of the EU. It is still too early to assess the implications of this stance, but it is likely that it will be invoked by defence lawyers also in relation to other tools of cross-border cooperation, such as requests for electronic evidence in criminal matters in the context of the European Production Order proposed by the EU.