European arrest warrants and the independence of the issuing judicial authority – How much independence is required? (Case note on joined cases C-508/18 and C-82/19 PPU OG and PI )

Introduction

The message given by the Court of Justice of the European Union (CJEU) was loud and clear: Germany’s Public Prosecutor’s Offices are not sufficiently independent to issue European Arrest Warrants (EAW). The Court’s decision in OG (C-508/18) and PI (C-82/19 PPU), however, did not come as a big surprise following Advocate General (AG) Campos Sánchez-Bordona’s Opinion in April 2019. There he stated that the opportunity had finally come to give ‘a general reply to the doubt concerning the capacity of the Public Prosecutor’s Offices of the Member States’ to issue EAWs. ¹ The AG argued that the term ‘judicial authority’ in Article 6(1) Framework Decision 2002/584/JHA ² must be interpreted as excluding any Public Prosecutor’s Office from issuing EAWs. The Court widely followed the arguments presented by the AG, but came to the conclusion that the lack of independence in this case could only be applied in regard to the way the German Public Prosecutor’s Office operated.

This case note will, as a starting point for the later discussion, briefly outline the CJEU’s case law addressing the interpretation of Article 6(1) Framework Decision 2002/584/JHA, and then will turn to examining the AG’s Opinion, as well as the Court’s reasoning. A distinguishing line shall then be drawn between the decision in OG and PI and the Court’s parallel decision in PF (C-509/18), which concerned the same issue with regard to the Lithuanian Public Prosecutor’s Office. The case note will close with a commentary on both decisions and the implications that will flow as a consequence of these decisions.

The interpretation of Article 6(1) Framework Decision 2002/584/JHA

Within the scope of Framework Decision 2002/584/JHA, the notion of ‘issuing judicial authority’ in Article 6(1) describes an authority that adopts the EAW. Whereas, the corresponding notion of ‘executing judicial authority’ in Article 6(2) refers to an authority that decides to respond to the issued EAW and to surrender the person concerned. In the past, the CJEU has interpreted Article 6(1) and formulated requirements for a national authority to be considered an ‘issuing judicial authority’. In this context, the CJEU’s decisions in Poltorak (C-452/16) and Kovalkovas (C-477/16) shall be briefly outlined.

In both decisions that were handed down on the same date (10 November 2016), the Court rejected the argument that the Swedish police service (Poltorak) and/or the Lithuanian Ministry of Justice (Kovalkovas) were to be considered ‘judicial authorities’ within the meaning of Article 6(1) Framework Decision 2002/584/JHA. The Court considers the notion of ‘judicial authority’ to require ‘an autonomous and uniform interpretation, which in accordance with the settled case law of the Court, must take into account the terms of that provision, its context and the objective of the Framework Decision’. ³ To this end, the Court established a set of criteria for national authorities to be considered a ‘judicial authority’. Firstly, the scope of the notion is not limited to judges or courts, but can, in a broader sense, also entail authorities participating in the administration of criminal justice. Secondly, all decisions relating to the surrender procedure must be ‘carried out under judicial supervision’ for the sake of safeguarding all procedural guarantees, including ‘those resulting from the fundamental rights and fundamental legal principles referred to in Article 1(3) of the Framework Decision’. ⁴ In Poltorak, the principle of separation of powers underpinned the decision, as the court held that the police services belonged to the executive branch rather than the judicial branch. ⁵ With the same reasoning, the Court held in Kovalkovas that the (Lithuanian) Ministry of Justice belonged to the executive and therefore could not act as a ‘judicial authority’ within the meaning of Article 6(1) Framework Decision 2002/584/JHA. ⁶ Designating to such an authority the power to issue EAWs would contradict the explicit aim of the Framework Decision – a measure of judicial cooperation in criminal matters – to put such decisions in the hands of an authority capable of exercising judicial review. It would also stand in contrast to the broader concept of mutual recognition, where Member States almost blindly accept that judicial safeguards have been respected in other Member States. ⁷

It is worth mentioning that in Özçelik (C-453/16 PPU), a third decision delivered by the Court on 10 November 2016, the Court ruled that the term ‘judicial decision’ in Article 8(1)(c) Framework Decision 2002/584/JHA must be interpreted as including a decision of a Public Prosecutor’s Office, which confirmed a national arrest warrant that had initially been issued by the police service. ⁸ The Court held that a Public Prosecutor’s Office constituted an authority responsible for administering criminal justice, and hence a decision that confirmed a national arrest warrant provided sufficient assurances for its judicial approval to be considered a ‘judicial decision’ within the meaning of Article 8(1)(c) Framework Decision 2002/584/JHA.

The facts of OG and PI

Turning the focus now to the situation that led to the proceedings in the cases of OG (C-508/18) and PI (C-82/19 PPU), one quickly realises that the question of whether a Public Prosecutor’s Office can be considered a ‘judicial authority’ is far more difficult to answer when compared to a Ministry of Justice or the police services. The tasks of a Public Prosecutor’s Office in Germany reach from the initiation of criminal investigations to the arraignment and the representation before courts, as well as the execution of sentences, and thus are closely interconnected with the criminal justice system as such. In Germany, the right to issue national arrest warrants is strictly reserved for judges (Article 104 German Constitution; §§ 112, 114(1), 457 German Criminal Procedure Code – Strafprozessordnung). ⁹ However, EAWs based on a previous national arrest warrant could be issued by a competent Public Prosecutor’s Office. ¹⁰

The German Public Prosecutor’s Office plays a role sui generis within the criminal justice system. The line begins to blur when one attempts to attribute a power as being either from the judicial or executive branches; in legal doctrine, this context is often referred to as an ‘organ for the administration of justice associated with the executive power’. ¹¹ In a sense, the Public Prosecutor’s Office works towards guaranteeing justice in the field of criminal law without forming part of the judiciary. It is organised in a hierarchical structure with the Ministry of Justice of the jurisdiction in which the Prosecutor exercises its functions at its head. The reason for this being that public prosecutors may under certain circumstances be subject to directions by their superiors according to §§ 146, 147 of the Courts Constitution Act (Gerichtsverfassungsgesetz – GVG). While in practice such directions are extremely rare and are allowed only within the limits of the principle of legality in criminal proceedings, the theoretical possibility exists and has in the cases of OG and PI cast doubt about the independence of the German Public Prosecutor’s Office.

The case of OG concerned a Lithuanian national residing in Ireland who was subject to an EAW issued by the Public Prosecutor’s Office in Lübeck for the alleged commission of murder and grievous bodily injury. OG argued that the Public Prosecutor’s Office lacked independence, risking political involvement in criminal proceedings due to the possibility of being subject to directions within the meaning of §§ 146, 147 GVG. The case of PI concerned a Romanian national who was subject to an EAW issued by the Public Prosecutor’s Office in Zwickau for the alleged commission of an organised or armed robbery. Similarly, to the case of OG, PI questioned the independence of the Public Prosecutor’s Office concerned. Noteworthy, was the fact that in neither case was an actual direction issued by a superior of the Public Prosecutor concerned.

The question referred to the CJEU by the Irish Supreme Court (OG) and the Irish High Court (PI) can be summarised as follows: must the term ‘issuing judicial authority’ within the meaning of Article 6(1) Framework Decision 2002/584/JHA be interpreted as including Public Prosecutor’s Offices that are subordinated to an executive body and may be subject to directions or instructions in cases concerning the adoption of EAWs.

The Opinion of AG Campos Sánchez-Bordona

In his Opinion, the AG took the view that a Public Prosecutor’s Office does not fall within Article 6(1) Framework Decision 2002/584/JHA and hence is not encompassed by the term ‘judicial authority’. ¹² To come to this conclusion, the AG examined, whether the two criteria derived from the Court’s case law in Poltorak and Kovalkovas could be applied to a Public Prosecutor’s Office: firstly, the question of whether the acting authority participates in the administration of justice; and secondly, the question of whether all relevant guarantees for decisions concerning EAWs are safeguarded and taken under judicial supervision. ¹³

As to the first question, the AG appeared to accept that, in principle, a Public Prosecutor’s Office

participate[s] in the administration of justice, as an instrument of the State which institutes criminal proceedings and, within which, it may even adopt, at least provisionally, and for limited periods of time, custody and arrest warrants or similar decisions, before the arrested persons are passed to the court which has to decide whether they are to be released or imprisoned. ¹⁴

With regard to the criterium of independence, the AG recalled that the CJEU held in its decision in LM (C-216/18 PPU) that the issuing judicial authority must meet ‘the requirements inherent in effective judicial protection – including the guarantee of independence’. ²⁰ There, the Court made clear that independence must be interpreted as excluding authorities that are subject to external influences that potentially impair the judgment of the authority concerned. It follows from this – bearing in mind that an EAW may produce serious limitations of the freedom of the person concerned – that the level of independence required to issue an EAW must be ‘as high as possible’. ²¹ It would be inconsistent – also when viewed alongside the underlying principle of mutual recognition – to allow in such cases a ‘lower’ level of independence and to accept a decision taken by an authority that may be subject to instructions from a superior body. Such a decision ‘must be judicial in the true sense, and consequently can only be carried out by the judicial branch, that is to say, by an independent body sensu stricto’. ²²

The AG concluded that, in Germany, the hierarchical structure of the Public Prosecutor’s Office, as well as the possibility to be subject to directions from a superior body, indicated that the level of independence was not met. In his conclusion, he held that not only the German, but any Public Prosecutor’s Office shall be excluded from the term ‘judicial authority’ in Article 6(1) Framework Decision 2002/584/JHA.

The Court’s judgment

In its Grand Chamber judgment, the Court widely followed the AG and reached a conclusion which might appear to confirm the AG’s Opinion, but only does so with an important restriction. Only Public Prosecutor’s Offices that ‘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’ are excluded from the notion of ‘judicial authority’ within the meaning of Article 6(1) Framework Decision 2002/584/JHA. ²³

Taking Article 6(1) as a starting point for its reasoning, the Court reiterated its previous case law in Poltorak and Kovalkovas stating that the concept of ‘judicial authority’ must be interpreted autonomously and in a way that is uniform and may also include – besides judges and courts – authorities participating in the administration of criminal justice in the Member State concerned. ²⁴ In criminal proceedings, the Public Prosecutor’s Office which is competent for prosecuting and accusing a person for having allegedly committed a criminal offence plays a crucial role, and thus must be considered as such an authority, stated the Court. This also applies to the German Public Prosecutor’s Offices, as they are exclusively competent to issue indictments and to prepare the grounds for a court trial.

While the Court accepted the role of the German Public Prosecutor’s Offices, as authorities participating in the administration of criminal justice, it denied that the threshold of independence was met. The Court following the observations of the AG held that a ‘dual level of protection of procedural rights and fundamental rights’ was required. The first level concerned the correct application of the legal provisions relating to the adoption of a national arrest warrant. The second level concerned judicial protection when issuing an EAW. At least, at one of the two levels, ‘a decision meeting the requirements inherent in effective judicial protection should be adopted’, according to the Court. Consequently, the Court held that Member States where the competence to issue EAWs laid with authorities participating in the administration of criminal justice without being judges or courts, the decision to adopt the national arrest warrant itself must meet those requirements. ²⁵

On the second level of protection, the authority which is competent to issue EAWs has to scrutinise whether the legal conditions to issue an EAW are satisfied alongside it being proportional. ‘[E]ven where the European arrest warrant is based on a national decision delivered by a judge or a court’, the issuing authority within the meaning of Article 6(1) Framework Decision 2002/584/JHA must be characterised as ‘exercising its responsibilities objectively […] without being exposed to the risk that its decision-making power be subject to external directions or instructions, in particular from the executive’. The independence of the judicial authority must be outlined in statutory rules and a suitable institutional framework. ²⁶ The Court also held that, in Member States where authorities participating in the administration of criminal justice (without being judges or courts) decide to adopt an EAW, such a decision must be open to judicial review.

Strictly applying those findings on the German Public Prosecutor’s Office, the Court concluded that the pure possibility of directions – despite being extremely rare ²⁷ – by a superior body resulted in a lack of independence of the Public Prosecutor’s Office. Despite substantive legal safeguards, namely the principle of legality, provided for in German law to limit the right to issue such directions, for the Court, it suffices that the possibility to issue directions in the context of EAW decisions de lege lata remains. The Court added that the fact that no such directions were given in the case of OG and PI was irrelevant. ²⁸ The argument brought forward by the German government, that the Public Prosecutor’s Office to issue an EAW may be challenged before a court, was rejected by the Court on the ground that such a legal action does not protect Public Prosecutor’s Offices from being subject to directions.

OG and PI in the context of PF (C-509/18)

To fully comprehend the consequences of the CJEU’s decision in OG and PI, attention must be drawn to a second decision delivered by the Court on the same day, addressing a similar question, notably whether the Lithuanian Prosecutor General fell within the term ‘judicial authority’ in Article 6(1) Framework Decision 2002/584/JHA. In PF (C-509/18), the Court followed the same line of reasoning as in OG and PI. However, with regard to the circumstances in Lithuania and the role of the Prosecutor General, it held that the benchmark for independence of the Prosecutor from the executive was met and the Prosecution could be considered a ‘judicial authority’ within the meaning of Article 6(1) Framework Decision 2002/584/JHA. Under Lithuanian Constitutional Law, Article 118(3) of the Constitution, Public Prosecutors such as the Prosecutor General ‘enjoy the benefit of independence’ allowing him ‘to act free of any external influence, inter alia from the executive, in exercising his functions’. ²⁹ Therefore, the Court concluded that the term ‘judicial authority’

must be interpreted as including the Prosecutor General of a Member State who, whilst institutionally independent from the judiciary, is responsible for the conduct of criminal prosecutions and whose legal position, in that Member State, affords him a guarantee of independence from the executive in connection with the issuing of a European arrest warrant. ³⁰

The differences between the Court’s and the AG’s approach become clearer when contrasted against the practical implications of each approach. For the Court, it suffices that the Public Prosecutor’s Office is institutionally independent from the executive, thereby preventing any intervention by executive authorities in the EAW decision-making process. It, de facto, declared the Prosecutor General of Lithuania to be a ‘judicial authority’ in the sense of Article 6(1) Framework Decision 2002/584/JHA. But, what about the situation in other Member States where, by virtue of the law of that State, the Public Prosecutor’s Office is in charge of issuing EAWs? In that respect, the AG had, indeed, ‘warned’ that the executing judicial authority would need to assess in each case, whether the ‘independence-test’ is met by the Public Prosecutor’s Office concerned. He continued that this ‘could delay the surrender procedure, giving rise to requests for information or to challenges from the person concerned’. ³³

Commentary and outlook

One may wonder why the CJEU has taken such a strict approach in interpreting the independence of the issuing judicial authority within the meaning of Article 6(1) Framework Decision 2002/584/JHA. Was such a step really necessary or has the Court become overly cautious when facing questions of independence in the context of EAWs in the light of the recent developments, for instance, in Poland and Hungary or even with regard to Brexit? In LM, the Court has already stressed that decisions relating to EAWs must respect ‘all the guarantees appropriate for judicial decisions, inter alia those resulting from the fundamental rights and fundamental legal principles referred to in Article 1 (3) of the framework decision’, and particularly emphasised the independence of the issuing judicial authority. ³⁴ There, the Court held that the executing authority must refrain from executing an EAW in case the person concerned is at a real risk of suffering a breach of his fundamental right to a fair trial, particularly the right to an independent tribunal. ³⁵ With this in mind, one could assume that the Court, in OG and PI, intended to avoid further complications when it comes to establishing a sufficient level of independence of the issuing judicial authority. ³⁶

In the following, I will briefly comment on two aspects of the decision in further detail: firstly, the two-levelled protection of procedural and individual rights; and secondly, why the Court was right to not follow in its entirety the Opinion of the AG.

Firstly, with regard to the two-level system of judicial protection, the Court accepted that authorities that participate in the administration of criminal justice – without being courts or judges – may be in the position to issue EAWs, provided ‘the national judicial decision, such as a national arrest warrant, on which the European arrest warrant is based’, must itself meet ‘the requirements inherent in effective judicial protection’. This mirrors precisely the situation within Germany and inevitably leads to the question, why did the Court not stop its reasoning at this point? Instead, the Court required on the second level of protection that the authority participating in the administration of criminal justice, here the Public Prosecutor’s Office, must itself be sufficiently independent. Hence, why is there a need for a fully independent authority deciding whether to issue an EAW that is based on a national arrest warrant that has been issued by an (independent) judge or a court? The Court’s answer can be found in para 71, where it reads that the decision to issue an EAW includes an assessment of proportionality, thus providing the deciding authority with a certain margin of appreciation. This comprehensive interpretation by the Court includes an assessment that must be conducted by a fully independent authority, excluding authorities that may be subject to directions taking influence on the decision-making process.

Secondly, the question why the Court deviated from the AG’s Opinion to exclude all Public Prosecutor’s Offices from the term ‘judicial authority’ in Article 6(1) Framework Decision 2002/584/JHA must be viewed in conjunction with the case of PF. The AG argued extensively that the Lithuanian Prosecutor General – albeit an independent body by virtue of Lithuanian law – did not enjoy ‘judicial independence’. ³⁷ But does this matter? The Court’s answer was in the negative. ³⁸ The relevant question is not whether the Public Prosecutor’s Office is capable of exercising judicial functions, but whether the Public Prosecutor’s Office is a sufficiently independent body to issue an EAW. It is to agree with the Court that this can only be the case where the Public Prosecutor’s Office concerned is not even in theory subject to instructions or directions from a superior body, as was found to be the case in Lithuania, but not in Germany.

Immediately after the publication of the Court’s decision, Germany declared that EAWs will, from now on, be issued only by courts and that (for now) no change in the existing legal framework was required. ³⁹ It remains, however, unclear how this will affect all the EAWs issued by the Public Prosecutor’s Office in the past, especially when the EAW is still ‘active’. ⁴⁰ In Germany, legal practitioners and academics have called for a general reform in the light of the CJEU’s decision as well as a rethinking of the scope of the independence enjoyed by the German Public Prosecutor’s Office. ⁴¹ The Court’s decision may give rise to reforms of the legal framework not only in Germany but also in other Member States where Public Prosecutor’s Offices are competent to issue EAWs. Some Member States such as Austria, Denmark, Italy and Sweden have already provided statements with regard to the independence of their Public Prosecutor’s Office. ⁴² And yet, it will be only a matter of time until the CJEU will have to rule again on the independence of Public Prosecutor’s Offices.