Independence of Public Prosecutors’ Offices

Date15 February 2021
Year2021
AuthorGiuseppe Ruben Grimaldi
Pages80
DOIhttps://doi.org/10.30709/eucrim-2020-028

While the Court of Justice of the European Union (“CJEU” or “the Court”) has regularly provided clarification on the scope of various provisions of the Framework Decision on the European Arrest Warrant (FD EAW)1 since its entry into force, never had it had the chance to interpret the notion of “judicial authority”, referred to in Art. 6 of the FD EAW, as extensively as it was asked to do in a series of cases in 2019 and 2020, notably as regards national public prosecutors. In particular, the Court was asked to establish criteria for determining the level of independence necessary for public prosecutors to be regarded as judicial authorities capable of issuing, and executing, an EAW.

The issue of judicial independence has undoubtedly been a Leitmotiv of the Court’s case law in recent years. In this regard, we cannot but recall, for instance, the importance of the Court’s findings in the judgments on the “Polish rule-of-law crisis.”2 In general terms, judicial independence can be defined as the ability of the judiciary to execute its duties free from the influence of, in particular, the executive power,3 and without being driven by private interests. The simplicity of this general definition clashes, however, – as in all aspects of life, when it comes to applying a general principle in practice – with the complexity of the multifaceted reality, as will be shown in the next paragraphs dedicated to the status of national public prosecutors in various Member States with regard to the FD EAW.

I. The Concept of an ‘Issuing Judicial Authority’ within the Meaning of Art. 6(1) of the FD EAW

Art. 6(1) FD EAW provides that “[t]he issuing judicial authority shall be the judicial authority of the issuing Member State which is competent to issue [an EAW] by virtue of the law of that State.” Behind this tautological text is the lack of a real definition of the concept in question – a fact which has given rise to doubts in the national practice, leading several States to seek guidance from the CJEU to interpret that provision. The resulting case law of the Court, which in certain cases has caused strong reactions in the Member States, provides clarification as to the concept of an “issuing judicial authority.” However, the Court’s clarification is not without consequences: as will be exposed in section III of this article, it could entail deep changes in the national law of some Member States.

In fact, this case law first began to take shape with the rulings of 10 November 2016 in Poltorak, Kovalkovas and Özçelik.4 In these cases, the CJEU clarified, in the first place, that the concept of an “issuing judicial authority” is an autonomous concept of EU law; accordingly, it cannot be left to the assessment of the Member States.5 In the second place, the Court ruled that police services and ministries of justice cannot be regarded as “issuing judicial authorities” in the sense of Art. 6(1) FD EAW.6 Indeed, in accordance with the principle of the separation of powers, the judiciary must be distinguished from the executive; therefore, administrative authorities or police authorities, which are placed under the hierarchy of the executive, or a ministry of justice, which is an organ of the executive, are not covered by the concept of judicial authority.7

II. Recent Case Law of the CJEU on the Status of National Prosecutors

As mentioned above, in 2019 and 2020, the Court of Justice was confronted with a number of requests from several Member States for a preliminary ruling about the interpretation of the concept of a “judicial authority” under Art. 6 FD EAW. This time, however, the issues raised in these cases specifically concerned the status of national public prosecutors and their level of independence.

1. Joined Cases C-508/18 and C-82/19 PPU (Public Prosecutors’ Offices in Lübeck and Zwickau, Germany)

The landmark judgment of 27 May 2019 in the joined cases C-508/18 (Public Prosecutor’s Office in Lübeck) and C-82/19 PPU (Public Prosecutor’s Office in Zwickau),8 delivered by the Grand Chamber of the CJEU, ushered in the case law at issue. The referring courts – in the context of two EAWs issued by two German public prosecutors’ offices – asked the CJEU whether those German prosecutors could be regarded as “issuing judicial authorities” within the meaning of Art. 6(1) FD EAW, insofar as they are hierarchically subordinate to the Minister for Justice of the relevant Land, who may exercise, in relation to those prosecutors, directly or indirectly, an “external” power of supervision and direction, or even instruction, in connection with the adoption of a decision to issue an EAW.9

The Court, building on its previous findings in Poltorak and Kovalkovas, reiterated that the concept of a “judicial authority” must be understood as designating not only the judges or courts of a given Member State, but also, in a broader way, the authorities participating in the administration of criminal justice in that Member State, as long as they do not belong to the executive.10 It found that this first requirement was satisfied by the German prosecutors in question, given their essential role in the conduct of criminal proceedings.

However, in order to be regarded as a judicial authority, the authority responsible for issuing an EAW must also, as a second requirement, act independently in the execution of its functions and, accordingly, must not be exposed to any risk of being subject to an instruction in a specific case from the executive. In that regard, the Court recalled the dual level of protection of procedural and fundamental rights that the person against whom an EAW has been issued must enjoy – that is, protection of these rights both when a national decision is adopted and when an EAW is issued.11 Where this judicial protection 12 is carried out by entities that are not courts or judges, it can only be guaranteed by an institution that acts independently, without being exposed to an external power of instruction, in particular from the executive.13 Furthermore, the decision taken by such an entity to issue an EAW, and the proportionality of that decision, “must be capable of being the subject … of court proceedings which meet in full the requirements inherent in effective judicial protection.”14

In this case, notwithstanding the safeguards provided by German law to circumscribe the power of instruction enjoyed by the Minister for Justice to extremely rare situations, the possibility that a decision by a public prosecutor’s office to issue or not to issue an EAW may be influenced by the external power of such a minister cannot be ruled out. Thus, since that second requirement is not satisfied, German public prosecutors do not fall within the concept of an “issuing judicial authority.”

2. Case C-509/18 PF (Prosecutor General of Lithuania)

The same day of the judgment analysed above, the Grand Chamber of the CJEU, in its judgment in the similar case C-509/18,15 found, by contrast, that the Prosecutor General of Lithuania fell within the concept of an “issuing judicial authority” under Art. 6(1) FD EAW. Indeed, that prosecutor’s office participates in the administration of criminal justice in Lithuania16 and satisfies the independence requirement as, whilst institutionally independent from the judiciary, its legal position in Lithuania affords it a guarantee of independence from the executive in connection with the issuing of an EAW, allowing it to act free of any external influence in exercising its functions.17

3. Opinions of Advocate General Campos Sánchez-Bordona

Advocate General Sánchez-Bordona’s position in the two cases above was somewhat more “radical” than the one of the Court and is consistent with his position expressed in previous cases, notably Özçelik,18 of which it constitutes a sort of continuation. In his Opinions, not only did the Advocate General, like the Court, exclude that the German prosecutors’ offices be considered judicial authorities with the ability to issue judicial decisions such as EAWs, but he concluded that “the term ‘issuing judicial authority’ does not include the institution of the Public Prosecutor’s Office,”19 implying that only judges and courts are capable of issuing EAWs.20 As a result, and unlike the Court in its subsequent findings, the AG concluded that the Prosecutor General’s Office of Lithuania could not be regarded as an “issuing judicial authority” either.

In the AG’s view, only courts stricto sensu can ensure a sufficiently high degree of independence in decisions regarding the deprivation of liberty of the person concerned for a significant amount of time21 – as may be the case with an EAW – and are “capable of properly assessing the proportionality of issuing an EAW.”22 A public prosecutor’s office, for its part, does not administer justice and lacks by its very nature “judicial independence” even if it is recognised in national law as having the status of an independent body,23 since

[i]n a State governed by the rule of law, this role is the exclusive responsibility of judges and courts and not of other authorities, including those which participate in the administration of justice, such as the Public Prosecutor’s Office. The latter are not, like the judge, subject only to the law, are not independent to the same degree as judges, and, moreover, are always subject to the final decision of the court.24

This fundamental distinction between legal entities that administer justice (ius dicunt) and those that participate in its administration (such as the public prosecutor’s office) or simply collaborate in its execution (such as the police or, in certain cases, private individuals) is specific to criminal law. It is thus important to define the limits within which these entities can act and, more importantly, to differentiate the contexts in which they act: the AG observes, for instance, that a public prosecutor’s office may have a judicial nature in certain areas of...

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