In two preliminary judgments on 27/05/2019 the CJEU ruled on the independence of German (C-508/18 and C-82/19
PPU) and Lithuanian prosecutors (C-509/18). While it followed the Advocate General’s opinion in finding the German prosecutor not to be an issuing judicial authority [IJA] within the meaning of art. 6(1) of the European Arrest Warrant [EAW] Framework Decision the Court found the Prosecutor General of Lithuania to be one such, subject to proof to the Irish Court of the existence of control by the Lithuanian courts over its decision to issue an EAW.
The CJEU affirms a dual level of protection of the fundamental rights of the person sought for surrender. The first level is reached when domestic courts ensure that “all safeguards appropriate to the adoption of that type of decision” when a national warrant is issued. The second level of safeguard occurs with the control of the proportionality of the use of an EAW. This second control is key when the IJA is not itself a court, in that case the decision to issue an EAW must be subject to review by the court (para. 52-53 C-509/18). In the case of P.F. (C-509/18), the CJEU referred the case back to the Irish Supreme Court to assess if the decision to issue an EAW made by the General Prosecutor of Lithuania can be subjected to judicial review. Thus while the Lithuanian prosecutor presents a statutory independence enshrined in the Constitution protecting it from external pressure the potential nonexistence of judicial review of its decision could exclude it from being acknowledged as IJA.
A new ground of objection to surrender is now open. By laying down criteria to identify an IJA the CJEU allows us to raise the issue of the independence of the potential IJA. While this will certainly raise concerns for “continental systems” where prosecutors are linked to their Department for Justice it will have a lesser impact on common law systems like Ireland. The EAW Act 2003 designates the High Court as IJA with jurisdiction to issue an EAW following an application of the Director of Public Prosecution. When endorsing an EAW the High Court will ensure that criteria sets out in Section 3(1) of the Act are fulfilled, in particular the gravity threshold. Interestingly, this section does not require from the High Court a review of the proportionality of the measure which calls into question the compliance of its control with the “proportionality” safeguard required by the CJEU.
The application of CJEU ruling by national courts will soon draw a map of “compliant” IJA. The circulation of national case law between practitioners will be essential to ensure uniform application of the criteria across Europe. Further preliminary references will undoubtedly arise. These two rulings are a first step toward the questioning of independence of prosecutors in more general manner in CJEU case law - monitoring their application should open new avenues for the defence and supplement argument based on the ECtHR criticism of prosecution’s independence.
Elise Martin-Vignerte is member of the European Criminal Bar Association and the Defence Extradition Lawyers Forum. You can contact her should you have any queries in relation to International or European legal issues.