Opinion of the Advocate General — ECLI:EU:C:2019:337
Date: 2019-04-30
Language of the case: English
Subject matter: Judicial cooperation in criminal matters;Police cooperation;Area of freedom, security and justice
Procedure: Preliminary reference - urgent procedure
Origin: Ireland

Anonymised version
C-508/18 - 1
Case C-508/18
Request for a preliminary ruling
Date lodged:
6 August 2018
Referring court:
Supreme Court (Ireland)
Date of the decision to refer:
31 July 2018
ApplicantlRespondent:
Minister for Justice and Equality
Defendant/Appellant:
OG
THE SUPREME COURT
[OMISSIS]
In the Matter of the European Arrest Warrant Act 2003 (as amended)
Between!
The Minister for Justice and Equality
ApplicantlRespondent
and
Registered at the
Court of Justice under No. AD~B A5 8
l.uxetnbour8.
OG
Respondent/Appellant
REQUEST FOR A PRELIMINARY RULING OF 31. 7. 201S -CASE C-50S/1S
Interim Ruling of the Supreme Court referring questions to the Court of
Justice of the European Union for preliminary ruling delivered by Ms.
Justice Finlay Geoghegan on 31 July, 2018. [OR.2]
1. The Supreme Court heard the appeal in this matter with the appeal by PF
[OMISSIS]. The issue in this appeal is similarly whether the issuing judicial
authority is a judicial authority within the meaning of Article 6( I) of the
Framework Decision of l3 June 2002 on the European Arrest Warrant and the
surrender procedures between Member States (the "Framework Decision").
1.1 The Supreme Court has decided that it is obliged pursuant to Article 267 of
the Treaty on the Functioning of the European Union to refer questions to the
Court of Justice of the European Union to enable it decide the appeal in this
matter. It requests that this reference might be linked with the reference in the
appeal in the case of PF and it is not proposed to repeat all that it said in that
appeal in relation to the legal framework at EU or national level.
2. Subject Matter of the Dispute
2.1 The surrender of OG is sought pursuant to a European Arrest Warrant
(EAW) issued by the Public Prosecutor's Office, at the Regional Court
(Landgericht) of Liibeck (the "Liibeck Public Prosecutor") on the l3th May, 2016.
The surrender is sought for the prosecution of an offence allegedly committed in
1995 which the Public Prosecutor identifies as "murder, grievous bodily injury".
OG is stated to be a Lithuanian citizen who is residing at an address in Ireland.
2.2 OG objected to his surrender in the High Court on a number of grounds all
of which were rejected. The ground of objection relevant to the dispute in the
appeal before the Supreme Court is that the Liibeck Public Prosecutor is not a
"judicial authority" within the meaning of Article 6(1) of the Framework Decision
and hence the Irish European Arrest Warrant Act 2003. [OR.3]
2.3 In support of that contention two affidavits of [name of lawyer], a qualified
German lawyer with a legal doctorate in criminal law and a master of laws in
European law from the University of London were filed. One of these included an
expert's report from [name of lawyer] which inter alia considered the validity of
the issuing judicial authority, the Liibeck Public Prosecutor. In addition, he
certified as accurate an English translation of a number of paragraphs of Title X of
the German Courts Constitution Act, the Gerichtsverfassungsgesetz (the "GVG").
[name of lawyer] explained his view of the position of the Public Prosecutor as
follows:
"(a) The validity of the issuing authority for the warrant
This question is a matter of European Union law to be applied by national
courts.
2
MINISTER FOR JUSTICE AND EQUALITY
The public prosecutor in Liibeck, by German law, is not considered part of
the judicial corps in Germany in that sense that he enjoys the autonomous or
independent status of a court of law.
The public prosecutor is an officer under the order of the chief public
prosecutor who reports to and is subject to orders by the minister of justice,
a political office (§§ 146, 147 GVG). This position within an administrative
hierarchy with a political master at the top opens the possibility of political
involvement to the surrender proceedings.
Under German law, the public prosecutor is not a judicial authority with
competence to order detention or arrest of any person in Germany but in
cases of exigent circumstances. To order detention or arrest is a prerogative
of judges. The public prosecutor must apply to the respective court or judge
for an arrest warrant in Germany.
The public prosecutor cannot in his own right issue an arrest warrant in
Germany. Yet, it is his responsibility to execute an arrest warrant issued by a
judge, and it is within his discretion whether, when and how to do so.
A domestic arrest warrant having been issued, the Public Prosecutor was not
required to refer the matter to any court for approval or oversight in the issue
of the European Arrest Warrant.
In the issuing of the EAW concerning our client, no German court of law or
judge was involved. [OR.4]
So one might well say that no judicial authority within the meaning of the
Council Framework Decision of 13 June, 2002 on the European Arrest
Warrant and the [surrender] procedures between member states was
involved.
The EAW refers to the German arrest warrant, issued by a judge, and claims
to derive its powers from it."
2.4 The sections of the GVG referred to by [name oflawyer] and relied upon by
OG in his submissions include:
"Section 146
The officials of the public prosecution office must comply with the official
instructions of their superiors.
Section 147
The right of supervision and direction shall lie with:
1. the Federal Minister of Justice in respect of the Federal Prosecutor
General and the federal prosecutors;
3
REQUEST FOR A PRELIMINARY RULING OF 31. 7. 2018 -CASE C-508/I8
2. the Land agency for the administration of justice in respect of all the
officials of the public prosecution office of the Land concerned;
3. the highest-ranking official of the public prosecution office at the
Higher Regional Courts and the Regional Courts in respect of all the
officials of the public prosecution office of the given court's district.
Section 150
The public prosecution office shall be independent of the courts in the
performance of its official tasks.
Section 151
The public prosecutors may not perform judicial functions. They also may
not be assigned responsibility for supervising the service of judges."
2.5 The High Court sought, pursuant to s. 20 of the European Arrest Warrant
Act, 2003 via the Central Authority for Ireland, further information from the
Public Prosecutor in Liibeck in relation to the evidence of [name of lawyer] and
stated: [OR.5]
"Evidence has been presented on behalf of the requested person, OG, in
which it is asserted that the Public Prosecutor in Lubeck is not independent
of the Minister of Justice and cannot be seen as a judicial authority for the
purposes of Council Framework Decision 2002/584/JHA. Please provide
your views on this assertion. This information is requested in the context of
the recent ECJ case law on the criteria that distinguishes a judicial authority
(Case C-452/16 (PPU) Poltorak and case C-453/16 (PPU) Ozc;elik)."
2.6 A comprehensive reply (and translation) dated the 8th December, 2006, was
received from the Public Prosecutor's Office in Liibeck. It made reference to the
decision in Cases C-452/16 PPU Poltorak and C-453/16 PPU Ozcelik and then
considered the status of the German Public Prosecutor's Office in response to the
opinion provided by [name oflawyer]:
"According to this opinion, the question to which public authority the
institution 'public prosecutor's office' belongs can only play a tangential
role. The Basic Law of the Federal Republic of Germany does not make a
regulation concerning public prosecutor's offices. In Article 92 of the Basic
Law it is only decreed that the judges are entrusted with the judicial power;
it is executed by the Federal Constitutional Court, by the federal courts
provided for in the Basic Law and by the courts of the states. The public
prosecutor's office is recognised as an institution sui generis and acts as
connective link between the executive branch and the jurisdiction. The
German public prosecutor's offices do not 'administer' and do not only
4
MINISTER FOR JUSTICE AND EQUALITY
'execute' federal and state laws without an own decision-making power in
terms of a pure executive function but they work towards the jurisdiction of
the courts; therefore, they belong to the functional area of jurisdiction. They
are an organ of criminal justice at the same level as a court (judgment of the
Federal Court of Justice of 14 July 1971-3 StR 73171) upon which the
prosecution and the participation in criminal proceedings are incumbent. The
public prosecutor's offices bear the responsibility for the lawfulness and
regularity but also carefulness of the investigation proceedings as well as its
quick execution. With regard to the criminal courts, the public prosecutor's
offices create the preconditions for the execution of the judicial power
(investigation proceedings, indictment), they promote the judicial power of
the courts and execute judicial decisions. In Germany, the monopoly of
indictment is conferred upon the public prosecutor's offices. They have the
right of initiative to start investigation proceedings which lacks the judges in
Germany. In its judgment of 05 May, 2015 (2 BvL 17/09 ua) the Federal
Constitutional Court explains with regard to the role of public prosecutor's
offices in Germany among others; 'the public prosecutor's office is part of
the civil service and at the same time a necessary organ of criminal justice
[ ..]. With its [OR.6] obligation to objectivity (§ 160(2) of the German Code
of Criminal Procedure) it is a guarantor of the rule of law and lawful
procedural processes; as representative of the indictment it ensures an
efficient criminal justice. The importance of the public prosecutor's office is
not limited to the main hearing of the first instance but continues in its tasks
in appeal procedures [ ..]. In its functions as 'guardian of the law', the
protection of constitutional provisions to criminal proceedings is incumbent
upon it [ ..].' By means of this a 'special position of the public prosecutor's
office in the constitutional structure' was given to the public prosecutor's
office according to the Federal Constitutional Court. The fact that the public
prosecutor's office was given an own section in the German Court
Constitution Act with the paragraphs 141 to 152 about its responsibilities,
complies with this. According to the judgment of the Federal Constitutional
Court of 19 March 1959 (1 BvR 295/58), the public prosecutor's office is on
the basis of its tasks integrated into the judiciary 'from which it is an integral
part, especially in constitutional state. Public prosecutor's office and court
fulfil together the task of "granting ofjustice " [ ..].'
Concerning the question which relationship exists between Liibeck Public
Prosecutor's Office and the Ministry of Justice of Schleswig-Holstein it is
specifically pointed out that the Ministry is not authorised to issue
instructions towards Liibeck Public Prosecutor's Office. According to
paragraph 146 of the German Court Constitution Act, the officers of the
public prosecutor's office must certainly adhere to the service instructions of
their supervisor. Therefore, the Director of Public Prosecutions (the public
prosecutor's office at the Higher Regional Court of Schleswig-Holstein)
presiding over the public prosecutor's offices in Schleswig-Holstein would
be authorised to issue instructions towards the Senior Public Prosecutor of
Liibeck Public Prosecutor's Office and not the Ministry of Justice. With
5
REQUEST FOR A PRELIMINARY RULING OF 31. 7. 2018 -CASE C-5081l8
regard to the content, the power of giving instructions has its borders at 'law
and right' according to Article 20, section 3 of the Basic Law for the Federal
Republic of Germany; therefore an instruction must not require something
that breaks the law. Furthermore it results from the rule of law that the
principle of legality (paragraph 152, section 2 of the German Code of
Criminal Procedure) applying to the public prosecutor must be complied
with. Certainly, the Ministry of Justice could execute a so-called external
right of instruction towards the Director of Public Prosecutions; however,
the Ministry would be bound to the abovementioned borders of the right of
instruction. In order to secure the borders, the Ministry of Justice is,
according to the 'Law on the creation of transparency of political
instructions towards officers of the public prosecutor's office of 14 October,
2014' in Schleswig-Holstein obliged to inform the President of the state
parliament (Landtag), thus the legislative branch, in case of the issuance of
an instruction to the Director of Public Prosecutions.
Notwithstanding the above, it must be emphasised concerning the present
proceedings against the person concerned OG that in these proceedings at no
point an instruction, neither by means of the Ministry [OR.7] of Justice to
the Director of Public Prosecutions nor by means of the Director of Public
Prosecutions to the Senior Public Prosecutor of Liibeck Public Prosecutor's
Office was given"
2.7 The notification by Germany under Article 34(2) of the Framework Decision
was also in evidence in the High Court. The notification contains the following
statement:
"Re Article 6(3) of the Framework Decision: Under Article 6 the competent
judicial authorities are the Ministries of Justice of the Federal Republic and
of the Lander. As a rule, these have transferred the execution of the powers
resulting from the Framework Decision for the submission of outgoing
requests (Article 6(1)) to the public prosecutor's offices of the Lander and to
the regional courts, and the powers to meet incoming requests (Article 6(2))
to the chiefpublic prosecutor's offices of the Lander,"
2.8 The primary submission made in the High Court on behalf of OG was based
upon the alleged lack of independence of the Liibeck Public Prosecutor from the
executive. It was contended that he was not part of the judicial corps but was an
officer under the order of the Chief Public Prosecutor who reports to and is subject
to orders by the Minister of Justice. It was also contended that the Liibeck Public
Prosecutor does not administer justice or participate in the administration of
justice in the sense required to be a judicial authority for the purposes of Article
6(1) of the Framework Decision. It was submitted that the evidence was sufficient
to displace the presumption that the Public Prosecutor in Liibeck was a valid
judicial authority in accordance with the Supreme Court decision in Minister for
Justice and Equality v. McArdle; Minister for Justice and Equality v. Brunnell
[2015] IESC 56.
6
Anonv 'sed
.;
MINISTER FOR JUSTICE AND EQUALITY
2.9 The High Court, in its judgment of 20th March, 2017 [2017] IEHC 231
rejected the submission that the presumption that the Public Prosecutor of Liibeck
is a judicial authority within the meaning of Article 6(1) of the Framework
Decision had been rebutted by the evidence adduced. On the question of
independence, the High [OR.8] Court relied upon the fact that there had been no
instruction given either by the Ministry of Justice to the Director of Public
Prosecutions nor by the Director of Public Prosecutions to the Senior Public
Prosecutor of the Lubeck Public Prosecutor's Office in relation to this case. The
trial judge was satisfied that German law provides for the independence of public
prosecutors and that it is only in exceptional circumstances, for which a system of
checks and balances has been provided, that the executive branch can interfere
with a decision of a public prosecutor.
2.10 In rejecting the objection made on behalf of OG the High Court accepted as
the test to be applied that the prosecuting authority be independent from the
executive and participate in the administration of justice. It granted liberty to
appeal in relation to the correctness or otherwise of the decision that the Lubeck
Public Prosecutor is an issuing judicial authority within the meaning of the
Framework Decision and the European Arrest Warrant Act 2003 as amended.
2.11 The Court of Appeal heard this appeal with the appeal inMinister for Justice
and Equality v. PF. In its judgment [2017] IECA 266 it upheld the decision of the
High Court. On the question of independence it applied a test of "functional
independence" and "operating de facto independently" in reliance upon the
approach of Lord Dyson in Assange v. Swedish Prosecution Authority (Nos. 1 and
2) [2012] 2 AC 471, where at para. 153 he commented:
"...I am inclined to think that the essential characteristic of an issuing
judicial authority are that it should be functionally (but not necessarily
institutionally) independent of the executive. As we have seen, the
fundamental objective of the Framework Decision was to replace a political
process with a non-political process. This could only be achieved if the new
'judicialised' system was operated by persons who de facto operated
independently of the executive ... " [OR.9]
3. Relevant National Legal Provisions
3.1 The same national legal provisions and case law apply to this reference as
apply in the reference in the case of Minister for Justice and Equality v. PF and
are not repeated.
4. Assessment of Evidence
4.1 The Supreme Court considers that the High Court sought and obtained the
relevant additional information from the issuing judicial authority in this case and
the decision on surrender must be made on the basis of the expert evidence of
7
REQUEST FOR A PRELIMINARY RULING OF 31. 7. 2018 -CASE C-S08/18
[name of lawyer] and the additional information supplied by the Public
Prosecutor's Office in Liibeck. Such evidence may be sufficient to displace
reliance by the Irish courts on a presumption that the Public Prosecutor in Liibeck
is a judicial authority within the meaning of Article 6(1) of the Framework
Decision and that issue must be decided by the Irish courts prior to the surrender
ofOG.
4.2 On the issue of independence, the Supreme Court considers that the
evidence indicates that in the German legal system the Liibeck Public Prosecutor's
Office may be the subject of a direction or instruction from the Director of Public
Prosecutions (the public prosecutors at the Higher Regional Court of Schleswig-
Holstein) which in turn may be the subject of an instruction or direction from the
Ministry of Justice of Schleswig-Holstein. Any such direction must be lawful and
requires notification to the President of the State Parliament of Schleswig-
Holstein. There is no evidence that any such direction was issued in respect of the
EAW for the surrender ofOG. [OR.tO]
4.3 There is some difficulty in reaching conclusions in relation to the role of the
Liibeck Public Prosecutor in relation to the administration of justice in Germany
in part by reason of the difference in terminology in English used by [name of
lawyer] and the English translation of the information provided by the Liibeck
Public Prosecutor's Office. Subject to that it appears to the Supreme Court that the
role of the Liibeck Public Prosecutor is confined to initiating and conducting
investigations and assuring that such investigations are conducted lawfully, the
issuing of indictments, executing judicial decisions and conducting the
prosecution of criminal offences at a trial court and appearing in relation to
appeals. It also appears that the Public Prosecutor has an obligation of objectivity.
The Supreme Court notes that the Public Prosecutor does not issue national arrest
warrants which are issued by a court in Germany. The Supreme Court has noted
that, in accordance with ss. 150 and 151 of the GVG, the Public Prosecutor's
Office is independent of the courts and may not perform judicial functions.
5. Grounds for Reference
5.1 The Supreme Court relies upon what is stated in the reference in PF in
relation to the judgments of the Court of Justice in Case C-452/16 PPU Poltorak,
C- 453/16 PPU Ozr;elik,C-477/16 PPU Kovalkovas and C-486/14 Kossowski and
the Advocate Generals' opinions therein and the principles which emerge.
5.2 The Supreme Court is uncertain whether, on the evidence and information
herein, the Public Prosecutor in Liibeck meets either the test of independence or
administers criminal justice in the sense required by those decisions to be
considered a judicial authority. [OR.ll]
5.3 The Supreme Court has noted in particular what has been stated by the Court
of Justice in Poltorak that a judicial authority must be an authority that is
independent of the executive. This stems from the well established separation of
8
MINISTER FOR JUSTICE AND EQUALITY
powers between the legislature, executive and judiciary. The Supreme Court has
further noted the Court's consideration of independence of courts in Case
C-216/18 PPU LM at paras 63-64. The institutional structure of the Public
Prosecutor's Office in Germany appears to be such that the Liibeck Public
Prosecutor is institutionally subject ultimately albeit indirectly to a direction or
instruction of the executive. The Supreme Court doubts that the principles stated
by the Court of Justice in Poltorak and the other decisions can be met by such a
public prosecutor or that independence can be determined by reason of the
absence of any direction or instruction given by the executive in relation to the
particular EAW issued in this case. It appears to the Supreme Court that the
question as to whether or not the Liibeck Public Prosecutor is or is not a judicial
authority must be determined by reference to its position in the German legal
system rather than the individual facts of the case.
5.4 On the question of the Public Prosecutor's role in relation to the
administration of justice it appears to the Supreme Court that the Public
Prosecutor in Germany has an essential role in relation to the administration of
justice but that it is a role which is distinct from that of the courts or judges. It is
unclear whether such a role, if the independence test is met, is such that it meets
the relevant test of administering justice or participating in the administration of
justice so as to constitute a judicial authority within Article 6(1) of the Framework
Decision. This is so particularly having regard to the underlying principles of the
Framework Decision of mutual trust and mutual recognition between judicial
authorities. [OR.12]
5.5 The essential question as to whether the Liibeck Public Prosecutor or a
public prosecutor with its characteristics is or is not a judicial authority for the
purposes of Article 6(1) of the Framework Decision appears to the Supreme Court
to be a question of interpretation of European Union law the answer to which is
not clear. Hence this Court as a court of final appeal has determined it must make
this reference.
6. Questions
6.1 The Supreme Court accordingly pursuant to Art. 267 TFEU refers the
following questions to the Court of Justice of the European Union:
1. Is the independence from the executive of a public prosecutor to be
decided in accordance with his position under the relevant national
legal system? If not what are the criteria according to which
independence from the executive is to be decided?
2. Is a public prosecutor who, in accordance with national law, is subject
to a possible direction or instruction either directly or indirectly from a
Ministry of Justice, sufficiently independent of the executive to be
considered a judicial authority within the meaning of Article 6(1) of
the Framework Decision?
9
REQUEST FOR A PRELIMINARY RULING OF 31. 7. 201S -CASE C-50S/1S
3 If so, must the public prosecutor also be functionally independent of
the executive and what are the criteria according to which functional
independence is to be decided?
4. If independent of the executive, is a public prosecutor who is confined
to initiating and conducting investigations and assuring that such
investigations are conducted objectively and lawfully, the issuing of
[OR.13] indictments, executing judicial decisions and conducting the
prosecution of criminal offences, and does not issue national warrants
and may not perform judicial functions a "judicial authority" for the
purposes of Article 6(1) of the Framework Decision?
5. Is the Public Prosecutor in Liibeck a judicial authority within the
meaning of Article 6(1) of the Framework Decision of 13 June 2002
on the European Arrest Warrant and the surrender procedures between
Member States?
7. Expedited procedure or priority
7.1 This reference relates to a matter covered by Title V of Part III of the TFEU.
OG was taken into custody in Ireland but is now released on bail and hence the
Supreme Court has decided that it should not request the urgent preliminary ruling
procedure pursuant to Article 107 of the Rules of Procedures.
7.2 Nevertheless the Supreme Court requests the President to decide that this
reference be linked with the reference in the case of PF and both be determined
either by the expedited procedure in Article 105 of the Rules of Procedure or to
grant them priority in accordance with Article 53(3). This is an EAW matter. The
surrender of OG is sought in order to prosecute a serious offence alleged to have
been committed in 1995. The terms of OG' s bail in Ireland require him to present
himself each day to his local police station which significantly restricts his
freedom even within Ireland and he is not permitted to leave the State. This
reference may raise a doubt about the status of public prosecutors in Germany as
issuing judicial authorities with consequences for many EAWs from Germany.
The Court may consider by reason of potential consequences for other [OR.14]
EAWs from Germany and Lithuania in relation to persons in custody that it
should grant PPU to these references. The Supreme Court has been informed by
the solicitor for the Minister that there are in Ireland a number of EAW requests
adjourned before the High Court awaiting the outcome of these appeals and that in
5 such cases the respondents are detained in custody. [OR.IS]
[Formal order of reference attached, repeating the questions set out in
paragraph 6.1 above]
[OMISSIS] [OR.16]
[OMISSIS]
10
MINISTER FOR JUSTICE AND EQUALITY
[OMISSIS] [It] appearing to this Court that the determination of the issues
between the parties on this appeal raise questions concerning the correct
interpretation [OR.I7] of certain provisions of European Union Law namely
Article 6(1) of Council Framework Decision 2002/584/JHA on the European
Arrest Warrant and the surrender procedures between Member States [OMISSIS]
THE COURT HAS DECIDED TO REFER to the Court of Justice of the
European Union pursuant to Article 267 of the Treaty on the Functioning of the
European Union [OMISSIS] the questions:
[Repetition of the questions set out in paragraph 6.1 above]
[OMISSIS] [OR. IS]
[OMISSIS]
11