In its judgement in joined cases C-508/18 (Parquet de Lübeck) and C‑82/19 PPU (Parquet de Zwickau) which was delivered on 27 May 2019, the European Court of Justice found that the German Public Prosecutor does not qualify as an “issuing judicial authority” within the meaning of Art. 6(1) of the Framework Decision on the European Arrest Warrant. Art. 6(1) of the Framework Decision defines the meaning of the term “issuing judicial authority” thereby determining which national authority may be considered competent to issue a EAW. Therefore, the Court concluded that the German Public Prosecutor may not be considered such an authority and that there is no obligation for the executing judicial authority to act upon a EAW issued by the German Public Prosecutor. The Court came to this conclusion due to close links of the German Public Prosecutor to the authorities of the executive branch of the government.
Due to those close links, the German Public Prosecutor may be in a risk of being subject, directly or indirectly, to directions or instructions in a specific case from the executive, such as a Minister for Justice, in connection with the adoption of a decision to issue a European arrest warrant. What the German Public Prosecutor is missing in order to be considered an issuing judicial authority are guarantees of independence from the executive. This judgement of the European Court of Justice drew a lot of attention and questions were raised how far-reaching are its consequences in the context of judicial cooperation in criminal matters in the European Union. Especially, does the conclusion of the European Court of Justice mean that any public prosecutor, in any Member State of the EU, may not fall within the concept of issuing judicial authority in the context of Art. 6(1) FD EAW. Here, we take a look at the consequences of this judgment for the Croatian Public Prosecutor.
In Croatia, the functions of the public prosecutor are performed by the State Attorney’s Office which acts on the level of its central office (Office of the State Attorney of the Republic of Croatia) and on the regional (Office of the County State Attorney) and local (Office of the Municipal State Attorney) level. In Croatia, State Attorneys do have the competence to issue EAWs, which is defined in Art. 6(1) of the Act on Judicial Cooperation in Criminal Matters with the Member States of the European Union. They share this competence with the courts. However, having in mind the constitutional position of the State Attorney’s Office in Croatia, the conclusion must be reached that their position is not comparable with the position of the public prosecutors in Germany.
In Croatia, state attorneys (and their deputies) are not exposed to the risk of being subject, directly or indirectly, to directions or instructions in a specific case from the executive, such as a Minister of Justice, in connection with the adoption of a decision to issue a European arrest warrant. Under Croatian Constitution (Art 121.a), State Attorney’s Office is an autonomous and independent judicial body empowered and duty-bound to instigate prosecution of perpetrators of criminal and other offences, to initiate legal measures to protect the property of the Republic of Croatia and to apply legal remedies to protect the Constitution and law. The State Attorney General is appointed by the Parliament (at the proposal of the Government of the Republic of Croatia and following a prior opinion of the relevant committee of the Croatian Parliament). Deputy state attorneys are appointed, dismissed, and their disciplinary accountability is determined by the State Attorney’s Council. Constitutional and statutory provisions in Croatia safeguard the autonomy and independence of the State Attorney’s Office and exclude the possibility that the state attorneys are exposed, directly or indirectly, to directions or instructions in a specific case from the executive. Therefore, the ECJ-Judgement of 27 May 2019 in joined case C-508/18 and C‑82/19 PPU does not affect the Croatian system and there is no need to exclude Croatian state attorneys from the concept of issuing judicial authority in the context of judicial cooperation based on the EAW.
Another question should be considered – what are the effects of the judgement of the European Court of Justice in the context of judicial cooperation which is based on the European Investigation Order. Should the same standards, which apply in the context of judicial authority pursuant to FD EAW also apply in the context of issuing authority pursuant to Directive EIO? Pursuant to Art. 2(c) of the latter, issuing authority is a judge, a court, an investigating judge or a public prosecutor competent in the case concerned, or any other competent authority as defined by the issuing State which, in the specific case, is acting in its capacity as an investigating authority in criminal proceedings with competence to order the gathering of evidence in accordance with national law. From the above, it can be concluded that the concept of the issuing authority in the context of the EIO is a very broad one and may include all the investigating authorities, including the police authorities. However, the same standards which apply in the context of judicial cooperation based on the EAW should not, in general, apply in the context of the EIO. The basic difference is at what is at stake in these two instruments of judicial cooperation and to what level it is at stake. With the EAW it is the deprivation of the right to liberty, and with the EIO, there is a variety of rights (such as privacy and property) and a variety of levels of intrusions into those rights which are at stake. Therefore, in the context of the EIO a much more differentiated approach is needed. And very well, in the context of the most intrusive evidence gathering actions in the context of the EIO, such as those which are undertaken secretly and over a long period of time, it would be reasonable to expect that the above mentioned standards established in the context of the issuing judicial authority in the framework of the cooperation based on EAW, also apply in the context of issuing authority in the framework of cooperation which is based on the EIO. From the perspective of the Croatian criminal justice system, this is not a problem, since the most intrusive evidence-gathering actions may be undertaken only based on a warrant issued exclusively by the court.
Authors: prof. dr. Elizabeta Ivičević Karas, assist. prof. dr. Zoran Burić, assist. prof. dr. Marin Bonačić, assist. prof. dr. Aleksandar Maršavelski