German prosecutors are insufficiently independent to issue European Arrest Warrants

By Johannes Graf von Luckner

It is a statement that one would more readily expect from political activists – it was, however, issued by the Court of Justice of the European Union (CJEU): Public prosecutor’s offices in Germany are not sufficiently independent to issue European arrest warrants (EAWs) (Joined Cases C-508/18 and C-82/19 PPU, OG and PI).

The case is sending shock waves through Germany’s judiciary, although it was not wholly unexpected after Advocate General Campos Sánchez-Bordona stated, in his Opinion preceding the judgment, that he had been waiting for an opportunity to comment on German prosecutors’ independence.

The purpose of this post is to summarise the Court’s legal reasoning and to give a brief overview of the implications the judgment might have for Germany, German EAWs, and other Member States.

The judgment

The issuance of an EAW, the flagship of EU criminal justice cooperation, is a decision “extending” the reach of a national arrest warrant to the EU-level. The EAW is defined as a judicial decision from a Member State with a view to the arrest and surrender, by another Member State, of a requested person in order to put them on trial or to execute a prison sentence or similar, Article 1 of Framework Decision 2002/584/JHA on the EAW (FD EAW) (a framework decision is a pre-Lisbon legal act; it is roughly equivalent to a directive, but cannot have direct effect). An EAW must always be based on a previous national arrest warrant, sentence, or similar judicial decision (Article 8(1)(c) FD EAW).

The starting point of the CJEU’s reasoning is Art. 6(1) FD EAW. According to this provision, the Court states, it is in principle for national law to determine which bodies are “issuing judicial authorities” capable of issuing EAWs. However, as the CJEU held already earlier in Poltorak and Kovalkovas, the term “judicial authority” is an autonomous concept of EU law. Therefore, the CJEU lays down the minimum requirements for a nationally-determined authority to fall within Art. 6(1), consequently enabling the authority to issue EAWs.

The first, basic requirement is that the national authority must be an “authority participating in the administration of criminal justice”. This is a wide concept that is not limited to judges or courts: it aims to include all bodies involved in the administration of criminal justice at large. In its judgment, the CJEU held that this criterion is easily met by German prosecutors’ offices, as they have exclusive competence to issue indictments.

The second requirement, which the CJEU has now proven to apply very strictly, is that the issuing authority must be “guarantee[d] [to] act independently” when issuing EAWs.

 While a general requirement of independence may be an obvious requirement in cross-border judicial cooperation, the rigour with which this must be applied according to the CJEU’s latest judgement may be somewhat surprising. After all, the EAW is always based on a previous national arrest warrant or criminal judgment, both of which must be issued by a court, for which the strictest level of independence must be presumed from the outset. However, the CJEU in its judgment envisages a two-level system of protection of the requested person’s fundamental rights. The first level of protection is granted when the underlying national judicial decision is taken; the second, when the national decision is transformed into an EU-wide EAW. Therefore, the CJEU argues, where that second decision is not taken by a court or judge, it must be verified that the responsible authority grants the requested person the same level of rights protection as a court would – that requires strict independence from external influences such as instructions or directions, especially from the political level. This is particularly important in arrest proceedings since they affect by definition the right to liberty, enshrined in Article 6 of the EU Charter of Fundamental Rights.

The short answer to the question of whether this level of independence is reached by German prosecutors is no. German prosecution services are organised in a hierarchical structure, at the top of which is the Minister of Justice of the Land in which the prosecutor works (administration of justice largely being a competence of the Länder). According to sections 146 and 147 of the Courts Constitution Act (GVG), prosecutors are obliged to follow instructions from superiors, including their Minister of Justice. A longer answer would require providing some nuance to this stark picture, including the fact that instructions from ministerial level are extremely rare and, when they occur, are invariably accompanied by significant public attention. Moreover, the right to issue instructions is often accompanied by transparency requirements (e.g. an obligation to report the instructions to the relevant Land parliament). However, it is fair to conclude that in light of the CJEU’s strict approach to the independence criterion, the German public prosecution services are, indeed, not independent in the strictest sense required by the FD EAW.

But why?

While the Court’s logic of a two-fold protection of fundamental rights, stringently applied in this case, is appealing from the perspective of individual rights protection, one might still wonder whether there is an actual need for this second-level to be an equally independent decision. After all, the initial judicial decision leading to the EAW is taken by one or several judges who are obliged to carefully take the requested person’s rights into consideration. Why is there a need for a second safeguard when seeking to arrest the requested person in another Member State, whereas all other activities when executing an arrest warrant are entrusted to non-judicial actors?

The key to answering this question is touched only briefly by the CJEU when it mentions the need for the decision to issue an EAW to be proportionate (para 71). The idea behind this is that an arrest based on an EAW usually leads to the requested person’s surrender to another Member State. This often entails linguistic and cultural barriers, a reduced possibility to be visited by family members and so on, and consequently a lower chance of successful social rehabilitation. Therefore, an arrest due to a EAW regularly affects the fundamental right to liberty to a greater degree than an arrest in one’s home country (for illustration, see the case of a Hungarian surrendered to Romania for stealing a Christmas tree – without realising he was on the wrong side of the border). There are, therefore, situations in which it is proportionate in light of the right to liberty to issue a domestic arrest warrant, but not an EAW.

It is for this reason that an additional fundamental rights assessment, including especially a thorough proportionality assessment, is required when deciding that a requested person is to be sought for surrender to another Member State. And such an assessment, according to the CJEU’s latest judgment, can only be conducted by an independent body.

The Aftermath

According to information from the German Federal Criminal Police Office, there are currently around 5,600 outstanding EAWs issued by German authorities. While the immediate effect of the judgment is limited to the two EAWs in issue in those cases (concerning alleged criminals in Ireland), the decision opens the door to resisting every surrender on the basis of a German EAW because of the lack of independence of the prosecutors’ offices, pending a reform of the legal framework. As shown in similar previous cases, the executing authorities will not, under these circumstances, be in a position to give effect to the EAW and surrender the requested persons.

As regards the open EAWs, needless to say an ad hoc solution is urgently needed and will take some legal imagination. One option practitioners may now be looking at is to interpret the patchy German legal framework on the EAW in the light of the new judgement. German law does not specify explicitly who is responsible for issuing EAWs. Therefore, it could be argued that for the time being, German judges or courts can issue EAWs instead of the prosecutors’ offices following the CJEU’s judgement. However, the implicit character of the designation of public prosecutors to issue EAWs was already problematic as it was. Reinterpreting it now would add numerous problems of organisational (which court or judge is responsible?) and legal (lack of legal certainty, right to one’s lawful judge (as laid down in Art. 101(1) German Basic Law), etc.) nature.

What might come to Germany’s help are the extensive preparations made recently with respect to EAWs in the event of a no-deal Brexit: both the European institutions and the Member States have been looking for solutions in case the UK abruptly falls out of the EAW system in that scenario. Most actors concluded that for this scenario, the Council of Europe Convention of Extradition provides a viable fallback solution. Similarly, German EAWs could be transferred to the regime of  international law extradition requests where necessary. This system is far more complicated (Germany itself stated recently that it would not be able to extradite its citizens to the UK once EU law stops applying) but will remain functional whilst the necessary amendments to the German legal framework are drafted and brought into force.

Pending further constitutional analyses, which is beyond the scope of the present blogpost, the German legal framework could be reformed to align with the FD EAW in various ways: a frequentlydemanded general reform, allowing for total independence of German prosecution services; an exception to the hierarchical structure to which prosecutors are subject for EAWs on the federal level; or potentially even a patchwork of 16 different Länder solutions (plus another one for the federal prosecution service for certain very serious crimes), the last of which would be a nightmare for foreign judicial authorities to understand.

However, the judgment might have implications that reach well beyond Germany and German EAWs. According to notifications issued by Member States, a total of 13 Member States (Austria, Bulgaria, Croatia, Estonia, Finland, France, Germany, Greece, Lithuania, Luxembourg, Netherlands, Portugal and Sweden) designated their public prosecutor’s offices as issuing judicial authorities. Of these 13 states, only Estonia and Finland have, according to the European Commission’s Justice Scoreboard (p.11), prosecution services that can be deemed 100% independent (Lithuania should also be mentioned for its prosecutors’ almost perfect score). This should not be understood as a claim that in each of the remaining 11 Member States, political decisions can influence the decisions of prosecutors to the same degree as they (theoretically) could in Germany. What the high number of states with doubts remaining shows, however, is that national authorities will have a lot of work to do when distinguishing sufficiently independent prosecution services from structurally dependent ones when executing EAWs in the future.

Some comfort may be provided by the fact that Member States have a role model should reform of their EAW issuing authority becomes necessary. In a judgment published on the same day, the CJEU confirmed that the Lithuanian prosecutor general is sufficiently independent to issue EAWs – from the point of view of displaying their own impartiality, one might imagine that the judges in Luxembourg were not unhappy about the East/West divide in these results.

In any case, Germany as one of the main users of the EAW is now facing a delicate double task: it needs to find an ad hoc solution as fast as possible and a long term solution as sustainable as possible.