In a press release dated 26 November 2019, the Court of Justice of the European Union explores some recent cases shedding light on the requirements for proper implementation of European Arrest Warrants (EAWs).
The key findings presented are that EAWs must be:
- Fully independent without being subject to hierarchical constraints or instructions from any other source.
- Capable of being the subject of court proceedings in the issuing Member State without having to wait until the person requested is surrendered.
Court of Justice of the European Union
Established in 1952 in Luxembourg, the Court of Justice of the European Union (CJEU) is responsible for ensuring European Union (EU) law is interpreted and applied the same in every EU country, and that countries and EU institutions abide by the law.
In addition to interpreting and enforcing the law, the CJEU has other powers such as the ability to impose sanctions on EU institutions.
What is a European Arrest Warrant?
The European Arrest Warrant (EAW), valid throughout all member states of the EU, is used to arrest and extradite a fugitive to the issuing state so that they can face criminal prosecution.
A country receiving an EAW may execute the warrant, even if the offence to which it relates does not constitute a criminal offence in its jurisdiction. This principle applies to a wide range of offences including corruption, cybercrime, fraud, money laundering and drug trafficking.
EAW Framework Decision
The EAW Framework Decision (Framework Decision) came into force in 2004, with the aim of streamlining the extradition process throughout the EU.
A European Arrest Warrant may only be issued by the competent judicial authority in an EU member state or a state with a special agreement with the EU. ‘Judicial authority’ typically refers to a court or a judge, however many member states have designated public prosecutors as their judicial authorities for the purposes of the framework decision.
Issuing judicial authority
The Court of Justice has recently raised the issue of whether the Public Prosecutor’s Offices of the EU Member States may be regarded as an ‘issuing judicial authority’ within the context of the EAW Framework Decision.
Recent cases highlight this determination in action. It has been found that:
- The German Public Prosecutor’s Offices cannot be considered an ‘issuing judicial authority’ due to the risk of being subject to directions from the executive relating to a decision to issue an EAW.
- The Prosecutor General of Lithuania is considered to be an ‘issuing judicial authority’ because he has a legal position which affords him a guarantee of independence from the executive.
- The French Public Prosecutor’s Office cannot be regarded as an ‘issuing judicial authority’. Although it is not subject to potential instructions from the executive in specific cases (a key factor in assessing independence), the Ministry of Justice may issue general instructions to it and due to the hierarchical structure of the prosecutor’s offices, its members are subordinate to their hierarchical superiors.
Can EAWs be challenged?
An EAW issued by a public prosecutor must be based on a national arrest warrant issued by a judicial authority. Additionally, there must be the possibility of bringing court proceedings against this decision to issue the EAW.
The requested person must be able to challenge the EAW before a judge or court without having to wait until he/she is surrendered, as soon as the warrant has been issued (unless this would jeopardise the criminal proceedings).
Whilst European Arrest Warrants (EAWs) are designed to streamline and simplify the extradition process throughout the EU, differing legal systems across EU countries with varying judicial procedures and reporting relationships raise questions over the legality and effectiveness of the EAW system in specific cases. There is a need to ensure that issuing judicial authorities are completely independent, and that there is the possibility for EAWs to be challenged in court.