The prosecution is not a judicial authority to issue a European arrest warrant, according to the EU Court of Justice.

In 2002, the Council of the European Union had adopted a framework decision under which conditions a person could be surrendered from one member state to another. This was to unify and facilitate surrender procedures. In the Netherlands, this was implemented in the Surrender Act. On the question of which authority may issue a European Arrest Warrant (hereinafter also referred to as EAW), Article 6(1) of the framework decision writes: 

"The issuing judicial authority is the judicial authority of the issuing Member State competent to issue a European arrest warrant under the law of the issuing Member State." 

In any case, the power to issue a EAW belongs to the judge. However, according to the Dutch government, the Public Prosecution Service (hereinafter: the OM) would also qualify as a 'issuing judicial authority' who would be allowed to issue European Arrest Warrants (EAW). Indeed, in the explanatory memorandum to the Surrender Act, it is written:

"Article 6 of the framework decision shows that all tasks are assigned to judicial authorities and that it is up to the member states to determine who the judicial authorities are."

And

"Currently, the prosecutor has a leading role in handling extradition requests. He is involved in an extradition from beginning to end. The judge has a decisive voice, after all, his inadmissibility makes an extradition impossible. Nothing in the Framework Decision opposes maintaining this division of roles and supplementing it in such a way that the court can also take a positive final decision on surrender."

On 27 May, the Grand Chamber of the Court of Justice drew a line under this explanation. 

Contrary to what emerges from the explanatory memorandum to the Surrender Act, which is apparently content with a single judicial review, the European Arrest Warrant regime includes two levels of procedural and fundamental rights protection to be enjoyed by the requested person. Thus, not only must the decision on actual surrender be made by a judge, but also the decision on whether a European arrest warrant may be issued at all must have been made by a judge. And not, as has always occurred in practice, by the prosecution

After all, if the European arrest warrant is issued by the public prosecutor, there is a risk that doubts will arise as to whether this power was executed objectively. That is, that all incriminating and exculpatory elements have been taken into account, while the decision has not been prompted by instructions or directions from the executive (read: the Ministry of Security and Justice, which includes the Public Prosecution Service). The Court of Justice did not want to entrust this power to the Prosecution because a guarantee of independence is not provided. According to the Judicial Organisation Act, although the OM is part of the judiciary, this does not make it a judicial authority. There is too much doubt as to whether decisions of the prosecution are made objectively. Although the OM often does think of itself that a case is approached objectively.  

In my practice, this 27 May ruling led to the suspension of a client's surrender detention a day later. An interesting question is, what should happen to authorised surrenders that have not yet been executed. Since the Court has clearly considered that the wanted persons should enjoy two levels of protection, these decisions cannot be upheld as far as I am concerned. Indeed, if the European Arrest Warrant was issued by the prosecution, the wanted person has been denied a level of protection. Release should still be the consequence. This ruling will occupy minds for some time to come. 

Mr. D.M. Penn