The Minister for Justice & Equality v Dunauskis

• Jurisdiction: Ireland
• Judge: Ms. Justice Finlay Geoghegan
• Judgment Date: 31 July 2018
• Neutral Citation: [2018] IESC 43
• Court: Supreme Court
• Docket Number: [Appeal No: 2017/000149]
• Date: 31 July 2018

[2018] IESC 43

THE SUPREME COURT

Clarke C.J.

McKechnie J.

MacMenamin J.

Charleton J.

Finlay Geoghegan J.

[Appeal No: 2017/000149]

Between/

In the Matter of the European Arrest Warrant Act 2003 (as amended)

Between/

The Minister for Justice and Equality

Applicant/Respondent

and

Vytautas Dunauskis

Respondent/Appellant

European Arrest Warrant – Judicial authority – Preliminary ruling – Appellant seeking to appeal against his surrender pursuant to a European Arrest Warrant – Whether the Lübeck Public Prosecutor is 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, and hence the Irish European Arrest Warrant Act 2003

Facts: The surrender of the respondent/appellant, Mr Dunauskis, a Lithuanian citizen residing at an address in Ireland, was sought pursuant to a European Arrest Warrant (EAW) issued by the Public Prosecutor's Office at the Regional Court (Landgericht) of Lübeck on the 13th May, 2016. The surrender was sought for the prosecution of an offence allegedly committed in 1995 which the Public Prosecutor identified as "murder, grievous bodily injury". Mr Dunauskis objected to his surrender in the High Court on a number of grounds all of which were rejected. The Court of Appeal upheld the decision of the High Court. The ground of objection relevant to the dispute in the appeal before the Supreme Court was that the Lübeck Public Prosecutor is not 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, and hence the Irish European Arrest Warrant Act 2003.

Held by Finlay Geoghegan J that the Supreme Court was 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.

Finlay Geoghegan J held that the questions to be referred were the following: 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?; 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 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 Lübeck a judicial authority within the meaning of Article 6(1) of the Framework Decision?

Referral to the Court of Justice of the EU.

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.

1 The Supreme Court heard the appeal in this matter with the appeal by Mr. Lisauskas (2017 No. 148). The issue in this appeal is similarly whether the issuing judicial authority is 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 (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 Mr. Lisauskas 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 Mr. Dunauskis is sought pursuant to a European Arrest Warrant (EAW) issued by the Public Prosecutor's Office, at the Regional Court ( Landgericht) of Lübeck (the 'Lübeck Public Prosecutor') on the 13th 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'. Mr. Dunauskis is stated to be a Lithuanian citizen who is residing at an address in Ireland.

2.2 Mr. Dunauskis 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 Lübeck 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.

2.3 In support of that contention two affidavits of Prof. Dr. Hans-Walter Forkel, 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 Prof. Dr. Forkel which inter alia considered the validity of the issuing judicial authority, the Lübeck 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'). Prof. Dr. Forkel 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.

'The public prosecutor in Lübeck, 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.

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 Prof. Dr. Forkel and relied upon by Mr. Dunauskis 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;

2. the Land agency for the administration of justice in respect of all the officials of the public prosecution office 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 Lübeck in relation to the evidence of Prof. Dr. Forkel and stated:

'Evidence has been presented on behalf of the requested person, Mr. Vytautas Dunauskis, 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) Özçelik).'

2.6 A comprehensive reply (and translation) dated the 8th December, 2006, was received from the Public Prosecutor's...