The term ‘judicial authority’ may seem relatively straightforward, but with Member States trusting public prosecutors or a prosecutor general to issue warrants, the question of just what or who can constitute a ‘judicial authority’ has been clarified this year by the CJEU.

Article 6(1) of the Council Framework decision 2002/584/JHA states:

Determination of the competent judicial authorities:

1. The issuing judicial authority shall be the judicial authority of the issuing Member State which is competent to issue a European arrest warrant by virtue of the law of that State.

Clearly courts and judges issuing EAWs are doing so in their capacity as ‘judicial authorities’. However, what is not so clear is what happens when a warrant is signed by a prosecutor. What characteristics or mechanisms need to be in place to allow them to fall under the umbrella of a ‘judicial authority’? This question was answered recently by the CJEU in respect of Germany (Joined Cases OG (C-508/18) and PI (C-82/19 PPU)) and Lithuania (Case PF (C-509/18)), with differing results.

Both sets of proceedings originated in the Irish courts, with referrals being made to the CJEU seeking clarification on whether a ‘public prosecutor’ (Germany) or the ‘Prosecutor General’ (Lithuania) could be a ‘judicial authority’.

In considering whether a prosecutor could be classed as such the following features were highlighted by the court as being important:

1. That the ‘public prosecutor’ or ‘prosecutor general’ is involved in the administration of justice.

2. That they are sufficiently independent from the executive when exercising their duties and are not at risk of any direct or indirect influence.

Lithuania and Germany have different models when it comes to the structure of their justice system and the role of prosecutors.

In respect of Lithuania it was held that the Prosecutor General was firstly, involved in the administration of justice and secondly, sufficiently independent from the executive in carrying out their duties. This senior position is guaranteed independence from the executive and the Ministry of Justice. The CJEU therefore ruled that they were capable of being a ‘judicial authority’.

However, in Germany public prosecutors report to the Ministry of Justice and may therefore be subject to influence in the way they exercise their powers. So, whilst again the court decided that public prosecutors were involved in the administration of justice, they were not sufficiently independent from the executive to be a designated ‘judicial authority’.

What the decisions in respect of Germany and Lithuania demonstrate is the subjective nature of this issue. They have not resolved the question in respect of all member states, who will have different structures and systems in place.

On 7 June 2019, Eurojust published a list of responses from Member States following the CJEU rulings. Questions were asked of each state and their answers were compiled into a report which can be found here. This document can provide a starting point of information for practitioners to work with.

The decisions from the CJEU have provided guidance for further challenges to be based upon, as we have recently seen in respect of France.

On 26 November 2019, the CJEU published an opinion from the Advocate General in the joined cases from Luxembourg C566/19 PPU and the Netherlands C-626/19 PPU. These were requests for preliminary rulings on whether the public prosecutor’s office in France could be regarded as an ‘issuing judicial authority’.

There were two problems highlighted with the structure of the French system:

1. The Ministry of Justice may continue to issue general instructions to the French public prosecutor’s office, although it is no longer subject to instructions in specific cases.

2. The members of the public prosecutor’s office are subordinate to their hierarchical superiors.

The Advocate General has stated that the public prosecutor’s office must not receive specific or general instructions and that:

“A public prosecutor’s office cannot be regarded as an issuing judicial authority if, when adjudicating on an EAW, its members must comply with general instructions on criminal justice policy, issued by the Minister for Justice, which are binding in relation to such warrants and with instructions issued to them by their hierarchical superiors”.

In France there is not the same constitutional guarantee of independence from the executive as there is in Lithuania. The opinion of the Advocate General is that the French public prosecutor’s office is not an ‘issuing judicial authority’ given the risk of exposure.

It has also been clarified by the Advocate General, after preliminary rulings were sought in relation to France (Case C-626/19 PPU), Sweden (Case C-625/19 PPU) and Belgium (Case C-627/19 PPU), that the ability to bring court proceedings against the decision to issue the EAW is not a requirement to be fulfilled to qualify as an ‘issuing judicial authority’. It would however, relate to the effectiveness of the EAW itself as it is a condition relating to the lawfulness of the warrant.

Full judgment from the CJEU is still awaited on these cases. In addition, a Belgian court (Case C-510/19) has asked whether the Netherlands' Public Prosecutor may be regarded as an ‘executing judicial authority’.

These preliminary rulings and opinions from the CJEU have provided guidance on what practitioners should be looking for in order to mount a successful challenge. When looking to undermine these warrants, connections with those across jurisdictions will be invaluable. It is clear much will depend on evidence sought from lawyers practising in the requesting jurisdiction regarding the structure and role of the office of the public prosecutor, most importantly in relation to their interaction with the executive.

What is clear is that any system that does not afford a guarantee of independence from the executive when issuing EAWs is at risk of being challenged and practitioners should continue to press for further information.