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European Court of Justice: Court Confirms French, Belgian, and Swedish Prosecutors Can Issue European Arrest Warrants

(Jan. 17, 2020) In a series of decisions issued on December 12, 2019, the Court of Justice of the European Union (EU) confirmed that the public prosecutor’s offices of France, Belgium, and Sweden could issue European arrest warrants on their own.

These decisions were issued for cases C-625/19 PPU, C-627/19 PPU and, jointly, C-56ed76 6/19 PPU and C-626/19 PPU. Each of these cases involved the issuance of a European arrest warrant, which is “a request by the judicial authority in an EU country to arrest a person in another and surrender them for prosecution, or to execute a custodial sentence or detention order issued in the first country.” (Emphasis in original.) The main legal framework for European arrest warrants is the Council Framework Decision of 13 June 2002 on the European Arrest Warrant and the Surrender Procedures Between Member States (2002/584/JHA).

Case C-625/19 PPU involved a European arrest warrant issued by the Swedish Prosecution Authority; case C-627/19 PPU involved a warrant issued by the Belgian Public Prosecutor’s Office; and cases C-566/19 PPU and C-626/19 PPU involved warrants issued by the French Public Prosecutor’s Office. At issue in each of those cases was the prosecutor’s authority to issue a European arrest warrant. Framework Decision 2002/584 provides that “the issuing judicial authority shall be the judicial authority of the issuing Member State which is competent to issue a European arrest warrant by virtue of the law of that State.” (Art. 6.) However, the Court of Justice has not interpreted this provision as giving member states carte blanche regarding which judicial authority may issue a European arrest warrant. Indeed, European law requires that effective judicial protection be afforded to the persons subject to an arrest warrant, including the protections provided by judicial independence.

In the cases at hand, the Court of Justice found that enough effective procedural safeguards existed to ensure that European arrest warrants would not be issued abusively. The Court was satisfied that the national laws of both France and Sweden allowed for the decision to issue a warrant to be submitted to judicial review. With regard to the Belgian case, which involved a warrant issued to execute a custodial sentence, the Court found that the opportunity for judicial review was not necessary because the defendant had benefited from procedural safeguards during his/her trial.

The Court also considered whether French prosecutors were sufficiently independent to issue a European arrest warrant. This issue follows a decision of May 27, 2019, in which the Court of Justice found that an “issuing judicial authority” needed to be sufficiently independent of the executive branch to be able to issue a valid European arrest warrant. As the advocate general summarized in his opinion on cases Case C-625/19 PPU, C-627/19 PPU, and C-566/19 PPU and C-626/19 PPU, the Court’s jurisprudence shows that the concept of an “issuing judicial authority” cannot include an institution that might be “subject, directly or indirectly, to directions or instructions in a specific case from the executive, in connection with the adoption of a decision to issue [a European arrest warrant].”  In the cases at hand, however, the Court of Justice found that the French issuing authorities were indeed sufficiently independent for the European arrest warrant to be valid. The Court noted that while the Ministry of Justice can issue general criminal justice policy instructions, and even though French prosecutors are part of a hierarchy under the authority of the Ministry of Justice, the fact that French law does not allow the government to issue instructions for specific cases provides enough independence for it to be a proper issuing authority.