Opinion of the Advocate General — ECLI:EU:C:2019:338
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: Reference for a preliminary ruling
Origin: Ireland

summary the following to be
the position of the Prosecutor General in the legal system of the Republic of
Lithuania, The Republic of Lithuania has a written Constitution which is a living
constitution with a Constitutional Court which gives decisions in relation thereto.
In accordance with Art. 109 of the Constitution the administration of justice is
solely a matter for the courts. The Prosecutor General is the most senior
prosecutor in Lithuania and has the status of a prosecutor. He is independent of
the executive and is also independent of the judiciary. In accordance with Art. 118
of the Constitution the function of the prosecutor is to organise and direct pre-trial
investigation and prosecute criminal cases. [name of lawyer] further explained:
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MIN1STER FOR JUST1CE AND EQUALlTY
"The Constitutional Court in its rulings of l3th May 2004, 16th January
2006, 28th May 2008 and 7th April 2011 has stated that according to the
Constitution a prosecutor does not administer justice. Justice is also
not being administered during the pre-trial investigation which is
organised by a prosecutor. According to the Constitution, the
administration of justice is solely the function of the courts (i.e. the
judiciary) ..."
2.4 The High Court in exercise of its jurisdiction under s.2O of the European
Arrest Warrant Act, 2003 sought further information from the office of the
Prosecutor General through the central authority for Ireland, the Department of
Justice and Equality. On the 30th June, 2016 the affidavits of [name of lawyer]
were sent to the office of the Prosecutor General with a request for comments
thereon. The response of the 11th July referred to the need to assess the term
"judicial authority" in the context of the Framework Decision and made the point
that it is not sufficient "to identify how prosecution services is defined and
positioned in the national law [Or. 4] system". He noted the absence of a
definition of a judicial authority in the Framework Decision.
2.5 This was followed by a more specific request from the High Court
transmitted by the central authority in a letter the 3rd August, 2016. The
substantive request made by the High Court is as follows:
"The High Court requested under section 20 of the European Arrest
Warrant Act 2003, as amended, and Article 15.2 of the Framework
Decision, to be provided with the following additional information.
In the context of the structure and composition of the Lithuanian
Judicial System is the Prosecutor General considered an integral part
of the judicial structure or judicial corps?
In answering this question the High Court would appreciate if you
could address the following issues:
The Affidavit of Laws of [name oflawyer] sworn June 14th2016,
provided to your office under cover of letter dated 30th June
2016, in essence contends that the Prosecutor General is (1)
independent of the judiciary, (2) does not perform judicial
functions, and (3) is simply tasked with pre-trial investigation.
Can you please comment on these specific assertions by
reference to the Laws of Lithuania?
The said Affidavit further outlines that "The Constitutional Court
in its rulings of l3th May 2004, 16th January 2006, 28th May 2008
and 7th April 2011 has stated that according to the Constitution a
prosecutor does not administer Justice". Can you please comment
on these specific assertions by reference to the Laws of Lithuania
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and/or legal precedent to include rulings referred to in the said
Affidavit?
Please furnish any other relevant statement of the legal position
of the Prosecutor General in Lithuania as part of the Judicial
System [or] Judicial Corps."
2.6 The response from the Prosecutor's office dated the 7th September, 2016
referred to the right of the Prosecutor General's office to issue European Arrest
Warrants pursuant to Art. 69(1) of the Criminal Procedure Code of the Republic
of Lithuania an extract of which was set out. The letter then stated: [Or. 5]
"In addition, please be informed that your questions have already been
answered in 11 July 2016 letter ref. No. [OMISSIS] of the Prosecutor
General's Office of the Republic of Lithuania. Thus, we shall not make
any detailed commented [sic] regarding the issues raised in the
statement oflawyer's assistant [name oflawyer]."
2.7 There was then a further exchange between the Irish central authority and
the Prosecutor General's office in the context of an EAW in relation to another
individual which the Prosecutor General confirmed by a letter of the 15th
December, 2015 applied equally to the EAW in respect of PF. This request and
response were as follows:
Request dated 7/12/2016 from Ireland
"Please advise if the Office of the Prosecutor General is independent
of the executive, including the Ministry of Justice, in. Lithuania and
please indicate if that office is an authority in Lithuania that
administers criminal justice. This information is being sought to ensure
that the criteria for a judicial authority as determined by the European
Court of Justice in the cases of Poltorak (Case C-452/16 PPU) and
Ozcelik (Case C-453/16 PPU) is met."
Response from Prosecutor General's office
"Prosecutor General's Office of the Republic of Lithuania is
independent of the executive power as well as the Ministry of Justice.
Prosecution Service of the Republic of Lithuania ... is comprised of
the Prosecutor General's Office and territorial prosecutor's offices; the
Lithuanian Prosecution Service organizes and directs pre-trial
investigation and prosecutes criminal cases on behalf of the State.
These provisions are established in Article 118 of the Constitution of
the Republic of Lithuania."
2.8 The High Court concluded in its judgment of 27th February, 2017, [2017]
IEHC 232 that the Prosecutor General was a judicial authority within the meaning
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MINISTER FOR JUSTICE AND EQUALITY
of Article 6(1) of the Framework Decision and hence the European Arrest Warrant
Act 2003. At para 108 the High Court stated: [Or. 6]
On the evidence of [name of lawyer], it is apparent that the Lithuanian
Prosecutor General is a national authority which participates in the
administration of justice in the sense required by the 2002 Framework
Decision. The Prosecutor is independent of both the judiciary and executive.
The Public Prosecutor has a clear constitutional position within Lithuanian
law. The Prosecutor General is the only authority which can "organise and
direct a pre-trial investigation.["]
2.9 The High Court ordered that PF be surrendered to the Republic of Lithuania
but granted leave to appeal on points of law. The Court of Appeal in a judgment
of 20th October, 2017, [2017] lECA 267 dismissed the appeal and upheld the
conclusions and reasoning of the trial judge that the Prosecutor General is a
judicial authority.
2.10 The Supreme Court granted leave to appeal pursuant to Article 34.5.3 of the
Constitution. The sole issue in the appeal is whether the Prosecutor General is a
judicial authority within the meaning of Article 6(1) of the Framework Decision
and hence of the European Arrest Warrant Act 2003.
3. Relevant national legal provisions
3.1 The European Arrest Warrant Act 2003 gives effect to the Framework
Decision and s.2(l) provides that:
'''judicial authority' means the judge, magistrate or other person
authorised under the law of the Member State concerned to perform
functions the same as or similar to those performed under section 33
by a court in the State;" [Or. 7]
3.2 The Supreme Court in Minister for Justice and Equality vMcArdle; Minister
for Justice and Equality v Brunnell [2015] IESC 56 referring to the definition of
"judicial authority" as quoted above, determined at [49] that it would:
"interpret this definition in the Act of 2003, as amended, as far as
possible in light of the wording and purpose of the Framework
Decision to achieve the result it pursues"
3.3 The Supreme Court went on to hold, at [51], as follows:
"There is a presumption that when a European arrest warrant is issued,
and stated to be issued, by a public prosecutor or judge of a Member
State acting as the judicial authority designated by the Member State,
he or she is the judicial authority within the meaning of the Framework
Decision and the Act implementing it. If there are cogent grounds
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established in a particular case which could lead the Court to
concluding that the issuing authority was not a judicial authority that
would be a different matter. No such grounds have been established in
this case. What is clear is that a public prosecutor who is designated as
a judicial authority by a Member Slate tor the purposes of surrender on
foot of European arrest warrants cannot, by reason only of the fact that
lie or she is a public prosecutor, as opposed to a judge of a court, be
considered not to be a person who may issue a European arrest warrant
within the meaning of the Framework Decision."
3.4 The High Court in a judgment given on 28th July 2015 inMinister for Justice
and Equality v MV [2015] IEHC 524 subsequently interpreted the Supreme
Court's decision as follows:
"The inexorable logic of the decision in McArdle and Brunnell is that
the Court may be provided with cogent grounds for concluding that an
issuing judicial authority as designated by a Member State is not in
fact a 'judicial authority' within the meaning of the Act of 2003 and
the Framework Decision. The Supreme Court in McArdle and
Brunnell, by reference to the process of surrender being based upon
mutual recognition of judicial acts, by reference to the interpretation of
our legislation in light of the objectives and purpose of the Framework
Decision and by an acceptance that there could be cogent grounds for
concluding that a particular authority is not a judicial authority has, in
my view, implicitly held that 'judicial authority' has an autonomous
meaning within the Framework Decision. The question arising in this
case, therefore, is whether there are cogent grounds for concluding that
the Ministry of Justice in Lithuania on the facts herein is not 'a
judicial [Or. 8] authority' within the meaning of the Act of 2003 and
the Framework Decision."
3.5 The High Court concluded in that case that the Ministry of Justice of
Lithuania was not a "judicial authority" within the meaning of the Frame work
Decision.
3.6 Section 20 of the European Arrest Warrant Act 2003 (as amended) provides:
"(1) In proceedings to which this Act applies the High Court may, if of
the opinion that the documentation or information provided to it is not
sufficient to enable it to perform its functions under this Act, require
the issuing judicial authority or the issuing state, as may be
appropriate, to provide it with such additional documentation or
information as it may specify, within such period as it may specify,
(2) The Central Authority in the State may, if of the opinion that the
documentation or information provided to it under this Act is not
sufficient to enable it or the High Court to perform functions under this
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MINISTER FOR JUSTICE AND EQUALITY
Act, require the issuing judicial authority or the issuing state, as may
be appropriate, to provide it with such additional documentation or
information as it may specify, within such period as it may specify."
4. Assessment of Evidence
4.1 Having considered the evidence before the High Court, both in the form of
the affidavit evidence of [name of lawyer] and the correspondence received from
the Prosecutor General in response to the requests for additional information made
by the High Court under section 20 of the European Arrest Warrant Act 2003, the
Supreme Court has concluded:
1. The High Court has taken all reasonable steps to seek the relevant
additional information from the issuing judicial authority and the
decision on surrender must be made on the basis of the evidence from
[name of lawyer] and the further limited information supplied by the
Prosecutor General. [Or. 9]
2. The evidence of [name of lawyer] when considered in the context of
the additional information received may be sufficient to displace
reliance on the presumption that the Prosecutor General is a judicial
authority within the meaning of Article 6( I) of the Framework
Decision such that the Irish Courts must, prior to any decision to
surrender decide that issue.
3. Article 109 of the Constitution of the Republic of Lithuania provides
that the courts have the exclusive right to administer justice.
4. The Prosecutor General of the Republic of Lithuania appears to have
the status of prosecutor (the most senior prosecutor), and in its legal
system to be a public authority and independent of the executive and of
the judiciary.
5. The role of the Prosecutor General in relation to the administration of
criminal justice appears to be confined to conducting pre-trial
investigations and the prosecution of criminal offences.
6. The Constitutional Court of Lithuania is stated to have ruled that a
prosecutor does not administer justice and that according to the
Constitution of Lithuania the administration of justice is solely the
function of the courts.
5. Grounds for Reference
5.1 The Supreme Court has considered the judgments of the CJEU in cases
C-452/16 PPU Poltorak, C-453/16 PPU Ozcelik, C-477/16 PPU Kovalkovas and
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REQUEST FOR A PRELIMINARY RULING 31. 7.2018 -CASE C-S09118
C-[Or.10]486/14 Kossowski and the Advocate Generals' OpInIOnS therein
amongst other judgments. The following principles appear to emerge. The term
'judicial authority' in Art. 6(1) of the Framework Decision requires throughout the
Union an autonomous and uniform interpretation which must take into account the
terms of that provision, its context and the objective of the Framework Decision:
Poltorak [32]. The term 'judicial authority' in Art. 6(1) is not limited to
designating only the judges or courts of a member state: Poltorak [33]. It may
extend more broadly to the authorities required to participate in administering
justice in the legal system concerned: Poltorak [33]. The judicial authority must
also be an authority that is independent of the executive: Poltorak [35].
5.2 A public prosecutor may be a judicial authority within the meaning of Art.
6(1) of the Framework Decision: Ozcelik. However, this would appear to depend
upon whether the public prosecutor's office in question "constitutes a member
state authority responsible for administering criminal justice" Ozcelik [34] and
Kossowski [39].
5.3 The Supreme Court understands from the foregoing that the term 'judicial
authority' requires throughout the Union an autonomous and uniform
interpretation. Further that a public prosecutor may be a judicial authority where it
is independent of the executive and administers justice or participates in the
administration of justice in the relevant legal system. However, it is uncertain as
to exactly how a national court is to determine whether a public prosecutor is an
authority which administers justice or is required to participate in administering
justice in the legal system concerned as indicated by Poltorak para. 33, Ozcelik
para. 34, Kovalkovas para. 34 and Kossowski para. 39.[Or. 11]
5.4 Whilst it appears to the Supreme Court that the question may fall to be
determined by deciding whether in accordance with the relevant national legal
system, in this instance the Lithuanian legal system, the public prosecutor is
considered in that legal system to administer justice, the matter is not beyond
doubt by reason of the requirement for an autonomous meaning throughout the
Union. In Ozcelik, the Court of Justice held that the Public Prosecutor's Office in
Hungary was a judicial authority such that a confirmation by it of a national
warrant was a 'judicial decision' for the purposes of Article 8(1)(c) of the
Framework Decision. Advocate General Campos Sanchez-Bordona, at [49]-[52]
of his opinion, highlighted the express reference to public prosecutors in Article 2
of Directive 2014/411EU in identifying authorities competent to issue a European
investigation order. At [40] of his opinion, the Advocate General also observed
that the initial proposal for the Framework Decision expressly included public
prosecutors within the definition of judicial authority. The Advocate General, at
[52], also identified a public prosecutor's "capacity - if this is provided for in the
constitutional or legal rules of each Member State - to participate in the
administration of justice." This suggests that while the role of a public prosecutor
in a member state may be consistent with that of a judicial authority, this will not
necessarily be so in every case.
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MINISTER FOR JUSTICE AND EQUALITY
5.5 The judgment of the Court in Ozcelik, that the public prosecutor's office was
a judicial authority within the meaning of Art. 6(1) appears from [34] dependent
upon its determination that the public prosecutor's office in the Hungarian legal
system, "constitutes a Member State authority responsible for administering
criminal justice".
5.6 If, however, the issue is not to be decided by determining whether the public
prosecutor's office in Lithuania constitutes a public authority responsible for
[Or.12] administering criminal justice in Lithuania in accordance with the
Lithuanian legal system then the Supreme Court is unclear as to the criteria
according to which, in addition to independence from the executive the national
court is to determine whether or not a public prosecutor is a judicial authority for
the purposes of Art. 6(1) of the Framework Decision. In particular, whether or not
conducting pre-trial investigations and prosecuting criminal offences is
sufficiently linked to the administration of justice that a prosecutor who does this
but is independent of the judiciary in his own legal system may be considered a
judicial authority for the purposes of Article 6(1) of the Framework Decision. The
underlying principles of mutual trust and mutual recognition between judicial
authorities contribute to the uncertainty.
5.7 The Supreme Court observes that this difference between "participation in
the administration of justice" and "administering justice" which was a source of
controversy in the High Court and Court of Appeal may be a peculiarity of the
English translations of these judgments as a significant number of other languages
use only the "participation" formula, notably the French text and the Dutch text,
the latter of these being the language of the case in each of these decisions.
Irrespective of the specific phrasing used, it is respectfully observed that while it
remains clear that to be a judicial authority a public prosecutor must have a role in
the administration of justice, the extent and nature of the role that satisfies this test
is more uncertain.
6. Questions
6.1 The Supreme Court accordingly refers the questions pursuant to Art. 267
TFEU: [Or. 13]
1. Are the criteria according to which to decide whether a public
prosecutor designated as an issuing judicial authority for the purposes
of Art. 6( 1) is a judicial authority within the autonomous meaning of
that phrase in Art. 6(1) of the Framework Decision of 2002 on
European arrest warrant and surrender proceedings between Member
States that (1) the public prosecutor is independent from the executive
and (2) considered in his own legal system to administer justice or
participate in the administration of justice?
2. If not, what are the criteria according to which a national court should
determine whether a public prosecutor who is designated as an issuing
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judicial authority for the purposes of Art. 6(1) of the Framework
Decision is a judicial authority for the purposes of Art. 6(1)?
3. Insofar as the criteria include a requirement that the public prosecutor
administer justice or participate in the administration of justice is that
to be determined in accordance with the status he holds in his own
legal system or in accordance with certain objective criteria? If,
objective criteria what are those criteria?
4. Is the Public Prosecutor of the Republic of Lithuania a judicial
authority within the autonomous meaning of that phrase in Art. 6(1) of
the Framework Decision of 2002 on European arrest warrant and
surrender proceedings between Member States?
7. Request for Expedited Procedure or Priority[Or. 14]
7.l This reference relates to a matter covered by Title V of Part Three ofTFEU.
However, PF is not now in custody and hence the Supreme Court has decided that
it should not request the urgent preliminary ruling procedure pursuant to Art. 107
of the Rules of Procedure.
7.2 Nevertheless the Supreme Court requests the President to decide that the
reference be linked with the reference of today's date in relation to the similar
appeal of OG and be determined pursuant either by the expedited procedure
provided for in Art. 105 of the Rules of Procedure or to grant it priority in
accordance with Art. 53(3). The reason for this request is that this is an EAW
matter. The surrender of PF is sought to prosecute an offence alleged to have been
committed in 2012. This reference may raise a doubt about the status of the
Prosecutor General of Lithuania as an issuing judicial authority with consequences
for many EAWs from Lithuania. The Court may, however, consider by reason of
the potential consequences for other EAWs from Lithuania and Germany where
persons may be in custody that it should grant PPU to this and the reference in the
appeal of OG. 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. 15]
[Formal order of reference attached, setting out the questions indicated in
paragraph 6.1 above]
[OMISSIS] [Or. 16]
[OMISSIS]
[It] appearing to this Court that the determination of the issues between the parties
on this appeal raise questions concerning the correct interpretation of certain
provisions of European Union Law namely Article 6 (1) of Councillfrr. 17]
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MINISTER FOR JUSTICE AND EQUALITY
Framework Decision 2002/5 84/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]
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