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Publication

Who qualifies as a ‘judicial authority’ when issuing a European Arrest Warrant?

Briefing note

May 31, 2019 - European Arrest Warrant, Court of Justice of the European Union
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On 27 May, the Court of Justice of the EU (CJEU) issued its ruling on preliminary reference requests from the Irish Supreme Court. The referring Irish Court is considering the execution of three European Arrest Warrants (EAWs) for the purposes of conducting a criminal prosecution prior to judgment issued by two German public prosecutor’s offices and the Prosecutor General of 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 2002/584.

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 referring Irish Court asked the CJEU for guidance about this EU law concept, and the CJEU, therefore, had to grapple with the question of how to assess the independence of a public prosecutor from the executive.

The CJEU decision confirmed its earlier case-law that the concept of 'judicial authority' is not limited to only judges or courts, but more broadly to the authorities “participating in the administration of criminal justice," and found that the executing authority must be satisfied that procedural and fundamental rights are protected. Moreover, 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. 

With this decision, the CJEU has drawn a firm line with regards to the often blurry relationship that public prosecutors have with Ministries of Justice. The mere fact that the executive may issue an instruction to a prosecutor, whether that power is exercised or not, means that the prosecutor cannot qualify as a 'judicial authority' for the purposes of issuing EAWs.

This has far-reaching implications on which authorities are competent to issue other types of cross-border cooperation requests based upon EU mutual recognition instruments.

Download the Briefing note on the CJEU decision here.

If you are a journalist interested in this story, please telephone Fair Trials’ press department on +44 (0) 20 7822 2370 or +32 (0) 2 360 04 71.

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