Court of Appeal dismissed appeal on surrender to Germany, upholding High Court's finding of judicial authority.

THE COURT OF APPEAL

Neutral Citation Number: [2017] IECA 266

Birmingham J.

Mahon J.

Hedigan J.

No. 2017/180

THE MINISTER FOR JUSTICE AND EQUALITY

APPLICANT

AND

VYTAUTAS DUNAUSKIS

RESPONDENT

JUDGMENT of Mr. Justice George Birmingham delivered on the 20th day of October, 2017

1. This appeal was heard in tandem with the case of The Minister for Justice and Equality v. Tomas Lisauskas in which judgment is

also being delivered on this date. At issue here is an appeal from a decision of Donnelly J. of 23rd March, 2017, rejecting challenges

by Mr. Dunauskis to the making of an order providing for his surrender to Germany on foot of a European Arrest Warrant. As in the

case of Lisauskas, a central issue in the proceedings when before the High Court was whether the Public Prosecutor of Lubeck could

be considered a judicial authority for the purposes of the European Arrest Warrant Act 2003, as amended. The trial judge issued a

certificate pursuant to s. 16(11) of the European Arrest Warrant Act 2003, the points of law of exceptional public importance being

identified as follows:

“1. In determining whether a prosecuting authority is a valid issuing judicial authority for the purposes of the European

Arrest Warrant Act 2003 (as amended):

(a) Is the High Court entitled to rely on a presumption that the issuing judicial authority is a valid issuing judicial

authority within the meaning of the European Arrest Warrant Act 2003 (as amended)?

(b) Is the correct test that the prosecuting authority be independent from the Executive and participate in the

administration of justice?

2. Was the High Court correct in finding that the Chief Public Prosecutor in Lubeck is independent of the Executive branch

of government?

3. Was the High Court correct in finding that the Chief Public Prosecutor in Lubeck is an issuing judicial authority within

the meaning of the European Arrest Warrant Act 2003 (as amended)?”

2. It will be evident that the issue as to whether the public prosecutor is an issuing judicial authority within the meaning of the

European Arrest Warrant Act 2003 mirrors closely the issue considered in Lisauskas. Not only were the appeals heard together, but

the cases were argued at the same time in the High Court. In this Court, on this point in relation to the identification of a judicial

authority, counsel for Mr. Dunauskis was largely content to adopt the arguments of his colleague who appeared for Mr. Lisauskas. On

this point, I do not believe that there is anything I can usefully add to what I said in Lisauskas and I am in complete agreement to the

approach to this topic taken by Donnelly J. and I would therefore dismiss this aspect of the appeal. I therefore turn to the issue

about independence from the Executive. Both in the High Court and in this Court, the emphasis has been on the question of

independence. The contention was that the public prosecutor in Germany was not part of the judicial corps, but was an officer under

the orders of the Chief Public Prosecutor who reports to and is subject to orders by the Minister of Justice. Accordingly, it was

submitted that the spectre of political involvement in decisions to issue EAWs could not be ruled out.

3. The respondent, Mr. Dunauskis, put before the High Court evidence from Professor Dr. Hans-Walter Forkel, a German lawyer with a

Doctorate in Criminal Law and a Postgraduate qualification in European Law from the University of London. Dated 12th September,

2016, he stated:

“The Public Prosecutor in Lubeck, by German law, is not considered part of the judicial corps in Germany in the sense that

he enjoys the autonomous or independent status of a court of law…

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 13th 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.”

4. The Central Authority, in response to this, sent a request dated 6th December, 2016, to the issuing judicial authority requesting

the following information:

“(i) 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 caselaw on the criteria that distinguishes a judicial authority (Case C-452/16

(PPU) Poltorak and Case C-453-16 (PPU) Ozcelik.”

5. The issuing judicial authority, the Chief Public Prosecutor in Lubeck, replied on 8th December, 2016. The issuing judicial authority

stated that the EAW was a judicial decision which was made by a German judicial authority:

“Whereby the decision of Lubeck Public Prosecutor’s Office also complies with the requirement of the notions of ‘judicial

decision’ within the meaning of Article 1, section 1 and ‘judicial authority’ within the meaning of Article 6, section 1 of the

Framework Decision 2002/584/JHA which must be defined according to the Union rules.”

As to the particular circumstances which apply to the Public Prosecutor in this case, the issuing judicial authority stated:

“Since the Public Prosecutor’s Offices in Germany are authorities entrusted with the (sic) criminal justice, they must be

considered as ‘judicial authority’ within the meaning of Article 6, section 1 of the Framework Decision according to the

above mentioned jurisdiction which can take ‘judicial decisions’ within the meaning of Article 1, section 1 of the Framework

Decision. The fact that the issuance of the European Arrest Warrant of Lubeck Public Prosecutors against the person

concerned Dunauskis is a ‘judicial decision’ (Article 1, section 1 of the Framework Decision) by means of a ‘judicial

authority’ within the meaning of Article 6, section 1 of the Framework Decision is also not opposed to the fact that the

legal matter C-453-16 PPU (Ozelik) was based on a decision of a Hungarian Public Prosecutor’s Office which is, according

to the Hungarian Government, independent of the Executive branch.”

6. Having again referred to the decision of the CJEU, the issuing judicial authority went on to state:

“According to this Opinion, the question to which public authority the institution’s ‘Public Prosecutor’s Office’ belong 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 (sic). The German Public Prosecutor’s Office do not ‘administer’ and do

not only ‘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 level of jurisdiction. They are an

organ of criminal justice at the same level as a court (judgment of the Federal Court of Justice of 14th July 1971 – 3 St. R

73-7) 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 exercise of the judicial power (investigation proceedings, indictment), they promote the judicial power of the courts

and execute judicial decisions. In Germany, the monopoly of an indictment is conferred on the Public Prosecutor’s Office.

They have the right of initiative to start investigation proceedings which lacks the judge in Germany. In its judgment of 05

May, 2015 (2BvL 17/09 ua) the Federal Constitutional Court explains with regard to the role of the public prosecutor’s

offices in Germany amongst others; …‘with its obligation to objectivity (s. 160(ii) 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 task in appeal procedures… In its functions as ‘guardian of the law’ the protection

of constitutional provisions to criminal proceedings is incumbent upon it… The fact that the public prosecutor’s office was

given an own section in the German Court Constitutional Act at paras 141-152 about its responsibilities, complies with

this. According to the judgment of the Federal Constitutional Court of 19th 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 of justice’…

Concerning the question which relationship exists between Lubeck 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 Lubeck

Public Prosecutor’s Office. According to para. 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 Office in Schleswig-Holstein would be authorised to issue instructions towards the senior Public Prosecutor of

Lubeck Public Prosecutor’s Office and not the Ministry of Justice. With regard to the content, the power of giving

instructions has its borders at ‘law and right’ according to Article 20, s. 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 (para. 152, s. 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 aforementioned 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 instruction towards officers of the Public Prosecutor’s Office of 14th 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 Dunauskis that in these proceedings, at no point in

instruction, neither by means of the Ministry of Justice to the Director of Public Prosecutions nor by means of the Director

of Public Prosecutions to the Senior Public Prosecutor of Lubeck Public Prosecutor’s Office was given. Furthermore, it must

be noted that the European Arrest Warrant issued by Lubeck Public Prosecutor’s Office is based on a decision of a

national court in the form of a National Arrest Warrant issued on 29th March 2016.

Finally, it must therefore be determined that the principles of trust between the Member States, which is essential for the

acknowledgment of judicial decisions, is satisfied by the decision of Germany’s Public Prosecutor’s Offices since they – as

authorities entrusted with the criminal justice in Germany – take founded ‘judicial decisions’ as ‘judicial authorities’ within

the meaning of the Framework Decision."

The respondent also relied upon an English translation, verified by Professor Dr. Forkel of Title X of the German Courts Constitution

Act (GVG). The respondent relied in particular upon s. 146 which said that officials of the Public Prosecution Office must comply with

the official instructions of their superiors. Section 147 read:

“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 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.”

Attention was also drawn to s. 151 which states:

“The public prosecutors may not perform judicial functions. They also may not be assigned responsibility for supervising

the service of judges.”

The final piece of evidence was the notification by Germany under Article 34(2) of the 2002 Framework Decision concerning the

incorporation of the Framework Decision into domestic law. That notification contained the following statement:

“Re Article 6(3) 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 power

to meet incoming requests to the Chief Public Prosecutor’s Office of the Lander.”

The Conclusions of the High Court on the Issue of Independence

7. At para. 54, Donnelly J. said that the declaration that was made by the German State to the European Commission as regards the

designation of the Ministry of Justice as the issuing judicial authority raises an issue of independence. However, she went on to state

that the designation states that as a rule, the execution of these powers has been transferred to the Public Prosecutor’s Offices of

the Lander. She commented that while a Ministry of Justice cannot be an issuing judicial authority, referring to Kovalkovas (C-477/146

PPU) in that regard, that that was not the position that obtained here. She saw the arguments made on behalf of Mr. Dunauskis

concerning the exercise of control by the Minister for Justice over the Chief Prosecutor and consequently the actual Prosecutor who

issued the EAW as superficially attractive. Independence from the Executive branch was, she said, a sine qua non of judicial

independence. Public prosecutors across the Member States were, she said, in a sui generis or unique position. Although not members

of the judiciary, they play vital roles in criminal justice proceedings. Those roles may, however, vary from Member State to Member

State. She then concluded:

“57. In Germany, it appears that public prosecutors are part of the civil service (not necessarily unusual as they are, at a

minimum, public servants) and are a necessary organ of criminal justice at the same time. It appears that they have an

obligation to objectivity and that they are the guarantors of the rule of law and lawful procedural processes. The Public

Prosecutor’s Office has its own section in the German Court Constitution Act and the German court has stated that the

Public Prosecutor’s Office and the court fulfil together the task of granting justice.

58. It is in that context that the role of the German Minister of Justice must be seen. The Ministry of Justice may not

issue instructions towards Lubeck Public Prosecutor’s Office, and in accordance with the German Court Constitution Act,

the offices of the Public Prosecutor’s Office must adhere to the service instructions of their supervisor. Only the Director

of Public Prosecutions in Germany could issue that instruction. While it does appear that there is a power for the Ministry

of Justice to execute a so-called external right of instruction towards the Director of Public Prosecutions, that right of

instruction is only operable under strict conditions. The Public Prosecutor is bound by the principle of legality which also

binds the Ministry of Justice. Furthermore, if there is an instruction given to a State Prosecutor, the Legislative branch

must be informed of that instruction. These are the checks and balances which apply within the German system. Those

checks and balances ultimately ensure that the rule of law is complied with.

59. Furthermore, there has been an explicit assurance in this case that no instruction has been 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 Lubeck Public Prosecutor’s Office.

60. The Court is satisfied that German law provides for the independence of Public Prosecutors. 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. In this case, there has been no interference with the independence of the Prosecutor. Furthermore, the

respondent has failed to provide any evidence that would show that instructions have been given in any other case in

Schleswig-Holstein to Public Prosecutors in respect of the issue of EAWs or otherwise. Since 14th October, 2014, when

the law on the creation of transparency of political instruction towards officers of the Public Prosecutions Office came

into effect, this would be a matter of public record and information could have been provided if cases of such instructions

had occurred.

61. In all the circumstances, the Court is quite satisfied that the respondent has not rebutted the presumption that the

Public Prosecutor of Lubeck is a judicial authority within the meaning of the 2002 Framework Decision and the Act of

2003. The Court therefore rejects this point of objection.”

Before this Court, it is argued on behalf of Mr. Dunauskis, that the judge erred in her approach and the very fact of transfer

demonstrates the capacity of the Minister for Justice to direct Public Prosecution Offices and points to the lack of independence of

Public Prosecutor’s Offices. Counsel for Mr. Dunauskis said that while there are safeguards which may go some distance towards

protecting from unlawful interference, that is not what is in issue. Interference or influence that is not unlawful or improper per se still

compromises the independence of the body subject to it.

8. One cannot lose sight of the fact that the Framework Decision was a European Instrument which was agreed to by states with

different legal systems and traditions. We cannot focus on the long established and deeply rooted common law views of what

constitutes a judicial authority to the exclusion of how the concept is seen elsewhere. One would think of judicial authority as

referring to a judge. However, as the House of Lords pointed out in Assange v. Swedish Prosecution Authority (Nos.1 and 2) [2012] 2

A.C 471, when one looks at the phrases equivalent to judicial authority in other language texts, problems immediately emerge. The

French version is authorite judiciaire. That ‘judiciaire’ is capable of bearing a narrow meaning which would coincide with the English

language/common law view of judicial and a much wider meaning of ‘pertaining to law or the legal system’. At para. 153 of his

judgment in Assange, Lord Dyson 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 .

. .”

9. I find Lord Dyson’s reference to functional independence and operating de facto independent helpful. I am quite satisfied that the

German system is functionally independent and that the Lubeck Prosecutor is de facto independent of political control. I would reject

any suggestion that the entirely theoretical possibility of political direction robs German Prosecutors of their status as judicial

authorities as that term is understood in the Framework Decision. I am in agreement with the approach taken by Donnelly J. in the

High Court and I would dismiss the appeal.