The judges of the Court of Justice of the European Union (CJEU) ruled on Monday 27 May in Joined Cases C-508/18, C-82/19 and C-509/18 that the German public prosecutor’s offices, unlike the Prosecutor General of Lithuania, did not offer a sufficient guarantee of independence from the executive fo the purpose of issuing a European arrest warrant.
Two Lithuanian citizens and a Romanian national are opposing, before the Irish courts, the execution of European arrest warrants issued by German prosecutors and the Prosecutor General of Lithuania. First, they consider that these entities are not judicial authorities within the meaning of the Framework Decision on the European Arrest Warrant. In addition, the persons covered by the arrest warrant issued by the German prosecutors' offices consider that these authorities are not independent of the executive power in that they are administrative authorities subject to the authority of the Minister of Justice.
In these cases, the Supreme Court and the High Court of Ireland referred the matter to the CJEU for a preliminary ruling to shed light on the issues.
In his Opinion, Advocate General Manuel Campos Sánchez-Bordona took the view on 30 April that the Public Prosecutor's Office was not a judicial authority empowered to issue a European arrest warrant (see EUROPE 12245/5).
In their judgment of 27 May, the judges of the Court considered that the concept of issuing judicial authority as referred to in the above-mentioned Framework Decision did not concern German public prosecutors, who were exposed to the risk of being subject to individual directions or instructions from the executive branch for the issue of a European arrest warrant. On the other hand, the Lithuanian Public Prosecutor, structurally independent of the judiciary and competent to carry out criminal proceedings, is covered by this concept.
Recalling first of all that the arrest warrant is the first concrete expression of the principle of mutual recognition between Member States in criminal law, the judges note that this principle presupposes that only European arrest warrants meeting the conditions laid down in the Framework Decision must be executed. However, since such an arrest warrant constitutes a judicial decision, it must be issued by a judicial authority.
And although the principle of procedural autonomy applicable in the Union's legal order allows Member States to designate the judicial authority competent to issue a European arrest warrant, the meaning and scope of this concept of judicial authority must be uniform throughout the EU. Thus, for judges, it must participate in the administration of criminal justice in a Member State, which may be the case in Lithuania and Germany.
However, the authority responsible for issuing a European arrest warrant must act independently in the exercise of its functions, which presupposes that it exercises them in an objective manner, taking into account all incriminatory and exculpatory evidence and without the executive power being able to give directions or instructions.
In this case, in Germany, the law does not exclude that decisions to issue an arrest warrant may be subject to instructions from the Minister of Justice of the Land concerned. Consequently, according to the European judges, these public prosecutors' offices cannot be qualified as issuing judicial authorities within the meaning of the framework directive.
This is not the case for the Lithuanian Prosecutor General, the CJEU considers, although it does not have the information to assess whether or not the decisions of this authority to issue a European arrest warrant can be subject to court proceedings which meet in full the requirements inherent in effective judicial protection. The Supreme Court of Ireland will therefore have to verify this.
Asked about the scope of this judgment, Margaritis Schinas, Chief Spokesperson of the European Commission, said that the institution took note of it, that it would examine it in detail and "assess possible consequences for the procedure" of the European arrest warrant. (Original version in French by Lucas Tripoteau)