Joined Cases C‑508/18 and C‑82/19 PPU
OG
and
PI
(Requests for a preliminary ruling from the Supreme Court and the High Court (Ireland))
Judgment of the Court (Grand Chamber), 27 May 2019
(References for a preliminary ruling — Urgent preliminary ruling procedure — Police and judicial cooperation in criminal matters — European arrest warrant — Framework Decision 2002/584/JHA — Article 6(1) — Concept of ‘issuing judicial authority’ — European arrest warrant issued by a public prosecutor’s office of a Member State — Legal position — Whether subordinate to a body of the executive — Power of a Ministry of Justice to issue an instruction in a specific case — No guarantee of independence)
1. Police cooperation — Judicial cooperation in criminal matters — Council Framework Decision 2002/584 on the European arrest warrant and the surrender procedures between Member States — Concept of ‘issuing judicial authority’ within the meaning of Article 6(1) of Framework Decision 2002/584/JHA — Non-judicial authorities of a Member State participating in the administration of criminal justice in that Member State — Included — Concept of authorities participating in the administration of criminal justice — Public prosecutor’s office competent to prosecute a person suspected of having committed a criminal offence — Included
(Council Framework Decision 2002/584, as amended by Framework Decision 2009/299, Arts 1(1) and 6(1))
(see paragraphs 49-63)
2. Police cooperation — Judicial cooperation in criminal matters — Council Framework Decision 2002/584 on the European arrest warrant and the surrender procedures between Member States — Concept of ‘issuing judicial authority’ within the meaning of Article 6(1) of the framework decision — Public prosecutor’s office competent to prosecute a person suspected of having committed a criminal offence — Included — Conditions — Need for that authority to be independent of the executive — Need for the decision to issue a European arrest warrant to be subject to review by a court
(Charter of Fundamental Rights of the European Union, Art. 6; Council Framework Decision 2002/584, as amended by Framework Decision 2009/299, Arts 1(3) and 6(1))
(see paragraphs 67-75, 88, 90, operative part)
Résumé
German public prosecutor’s offices do not provide a sufficient guarantee of independence from the executive for the purposes of issuing a European arrest warrant
The Prosecutor General of Lithuania does, however, provide such a guarantee of independence
In the joined cases which gave rise the judgment in OG and PI (Public Prosecutor’s Office in Lübeck and in Zwickau) (C‑508/18 et C‑82/19 PPU), delivered on 27 May 2019, the Court of Justice, sitting as the Grand Chamber, held that the concept of ‘issuing judicial authority’, within the meaning of Article 6(1) of Council Framework Decision 2002/584/JHA, (1) that is the authority which is competent to issue a European arrest warrant, does not include public prosecutors’ offices of a Member State which 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. On the other hand, in the judgment in PF (Prosecutor General of Lithuania) (C‑509/18), also delivered on the same day sitting as the Grand Chamber, the Court held that that concept includes 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.
These various cases concerned the execution, in Ireland, of European arrest warrants issued by the German public prosecutor’s offices for the purposes of the prosecution, respectively, of a Lithuanian national (OG) and of a Romanian national (PI), and a European arrest warrant issued by the Prosecutor General of Lithuania for the purposes of the prosecution of a Lithuanian national (PF).
In each judgment, the Court, first of all, stated that the concept of a ‘judicial authority’, within the meaning of Article 6(1) of Framework Decision 2002/584, requires an autonomous interpretation and that that concept is not limited to designating only the judges or courts of a Member State, but must be construed as designating, more broadly, the authorities participating in the administration of criminal justice in that Member State, as distinct from, inter alia, ministries or police services which are part of the executive. Thus, that concept is capable of including authorities of a Member State which, although not necessarily judges or courts, participate in the administration of criminal justice in that Member State. In that regard, in so far as the European arrest warrant facilitates free movement of judicial decisions, prior to judgment, in relation to conducting a criminal prosecution, authorities which, under national law, are competent to adopt such decisions are capable of falling within the scope of Framework Decision 2002/584. Therefore, an authority, such as a public prosecutor’s office, which is competent, in criminal proceedings, to prosecute a person suspected of having committed a criminal offence so that that person may be brought before a court, must be regarded as participating in the administration of justice of the relevant Member State, which the Court considers to be the case of the German Public Prosecutor’s Office (OG and PI) and of the Prosecutor General of Lithuania (PF) respectively.
Next, the Court stated that the European arrest warrant system entails a dual level of protection of procedural rights and fundamental rights which must be enjoyed by the requested person. In addition to the judicial protection provided at the first level, at which a national decision, such as a national arrest warrant, is adopted, there is the protection that must be afforded at the second level, at which a European arrest warrant is issued, which may occur, depending on the circumstances, shortly after the adoption of the national judicial decision. As regards a measure, such as the issuing of a European arrest warrant, which is capable of impinging on the right to liberty of the person concerned, enshrined in Article 6 of the Charter of Fundamental Rights of the European Union, that protection means that a decision meeting the requirements inherent in effective judicial protection should be adopted, at least, at one of the two levels of that protection. Therefore, where the law of the issuing Member State confers the competence to issue a European arrest warrant on an authority which, whilst participating in the administration of justice in that Member State, is not a judge or a court, the national judicial decision, such as a national arrest warrant, on which the European arrest warrant is based, must, itself, meet those requirements. The Court considers that such a solution allows the executing judicial authority to be satisfied that the decision to issue a European arrest warrant for the purpose of criminal prosecution is based on a national procedure that is subject to review by a court and that the person in respect of whom that national arrest warrant was issued has had the benefit of all safeguards appropriate to the adoption of that type of decision.
As far as the second level of protection is concerned, the judicial authority competent to issue a European arrest warrant by virtue of domestic law must review, in particular, observance of the conditions necessary for the issuing of the European arrest warrant and examine whether, in the light of the particular circumstances of each case, it is proportionate to issue that warrant. In addition, the issuing judicial authority must be in a position to give assurances to the executing judicial authority that, as regards the guarantees provided by the legal order of the issuing Member State, it acts independently in the execution of those of its responsibilities which are inherent in the issuing of a European arrest warrant. More particularly, that independence requires that there are statutory rules and an institutional framework capable of guaranteeing that that authority is not exposed, when adopting a decision to issue such an arrest warrant, to any risk of being subject, inter alia, to an instruction in a specific case from the executive. Lastly, where the law of the issuing Member State confers the competence to issue a European arrest warrant on an authority which, whilst participating in the administration of justice in that Member State, is not itself a court, the decision to issue such an arrest warrant and, inter alia, the proportionality of such a decision must be capable of being the subject, in the Member State, of court proceedings which meet in full the requirements inherent in effective judicial protection.