Who has the power to issue a European Arrest Warrant?

Article by Fair Trials

Who has the power to issue a European Arrest Warrant (EAW)? The answer to this question has far reaching consequences for the flagship EU measure, which is used by authorities across the continent thousands of times every month. Now, thanks to a new a court decision, we have a clearer idea of who has the ability to issue these fast track extradition requests, and who does not.

On 27 May, the Court of Justice of the EU (CJEU) ruled that German public prosecutors do not provide a sufficient guarantee of independence from the executive when issuing an EAW, while the Prosecutor General of Lithuania does, however, provide such a guarantee of independence. As a result of this ruling, only judicial authorities deemed completely independent from the executive will be able to issue EAWs. Fair Trials published a briefing note outlining the key points and implications of this ground-breaking CJEU decision.

The ruling is based on preliminary reference requests from the Irish Supreme Court, which is considering the execution of three EAWs issued by Germany and Lithuania. The defence had argued that the EAWs were not valid, because they had not been issued by a competent judicial authority according to the Framework Decision on the EAW. The Irish Supreme Court referred to the CJEU key questions on how to assess whether a public prosecutor is sufficiently independent to qualify as a judicial authority.

This question goes to the heart of the right to a fair trial, because the independence of the judiciary is a key element of that right, as enshrined in Article 47 of the EU Charter on Fundamental Rights, which states that: “Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law.”

The CJEU had already taken a stand on the independence of the judiciary in the Celmer case, a case on the extradition of a suspect from Ireland to Poland, stating that as a matter of principle, a judicial authority called upon to execute an EAW must refuse to extradite if it considers that there is a real risk that the individual concerned would suffer a breach of their fundamental right to an independent tribunal and, therefore, of the essence of their fundamental right to a fair trial, on account of deficiencies likely to affect the independence of the judiciary in the issuing Member State.

Here again, the CJEU took a firm stand on what it takes to qualify as a judicial authority. It is up to each individual Member State to designate the body or bodies who can issue EAWs, however, the meaning and the scope of the concept of ‘issuing judicial authority’ must be interpreted consistently across the EU with regards to EAWs.

The CJEU found that the ‘issuing judicial authority’ must be capable of exercising its responsibilities objectively, and its independence must be guaranteed by statutory rules and an institutional framework. According to the judges in the Luxembourg-based court, the executive can under no circumstances give the judicial authority any instructions or directions on an investigation, even if that power is not exercised in practice.

In the case of Germany, the two public prosecutors offices that had issued extradition requests and are responsible for the prosecution of criminal offences were found to be subordinate to the German Ministry of Justice, which means that they may be subject, directly or indirectly, to directions or instructions on specific cases. However, in Lithuania, constitutional rules and the institutional framework affords the Prosecutor General a guarantee of independence (at least with respect to the issuing of EAWs).

In the light of the growing trend of governments attempting to influence and control the judiciary, most notably in Hungary and Poland, this judgment establishes a clear division between the executive and judicial branches of power, or the often-blurry relationship that public prosecutors have with Ministries of Justice.

Although the CJEU recognised that even though the current German government is unlikely to exercise the power it has to give instructions to public prosecutors, the political landscape in the country could change in the future. The ruling is a prudent move that takes a stand against government interference in judicial functions.

As a result, authorities such as prosecutors who cannot show that they are sheltered from the influence of the Ministry of Justice will not be deemed competent to issue EAWs. This also has far-reaching implications on which authorities are competent to issue other types of cross-border cooperation requests based upon EU mutual recognition instruments.

For more information on the CJEU decision, see our briefing note Who qualifies as a judicial authority for the purposes of issuing a European Arrest Warrant?

Update June 2019: in its judgment C619/18 (Commission v. Poland) of 24 June 2019, the CJEU has since continued to build upon its jurisprudence on the meaning of the independence of the judiciary as entailing two key aspects:

  1. External aspect: the court concerned must exercise its functions wholly autonomously, without being subject to any hierarchical constraint or subordinated to any other body and without taking orders or instructions from any source whatsoever, thus being protected against external interventions or pressure liable to impair the independent judgment of its members and to influence their decisions; and
  2. Internal aspect: to ensure that an equal distance is maintained from the parties to the proceedings and their respective interests with regard to the subject matter of those proceedings, the principle requires the objectivity and the absence of any interest in the outcome of the proceedings apart from the strict application of the rule of law.
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