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German EAWs: Divisional Court approves local courts as ‘judicial authorities’


On 6 May 2020 Judgment was handed down in the case of Shirnakhy & Anr v Weiden Local Court & Anr [2020] EWHC 1103, in which Lady Justice Nicola Davies and Mr Justice Lewis considered whether local courts (Amtsgerichte) in Germany were competent judicial authorities within the meaning of Article 6(1) and 6(3) of the Framework Decision, and so able to issue European Arrest Warrants (EAWs).

The issue arose following the judgment of the CJEU in OG and PI, in which it held that German public prosecutors were not ‘judicial authorities’ because they may be influenced by instructions issued by the executive. Following that decision, EAWs issued by German public prosecutors were withdrawn and were replaced in most instances with warrants issued by local courts.

Article 6(1) requires issuing judicial authorities to be competent ‘by virtue of the law’ of the requesting state. The Applicants relied upon expert evidence which showed that according to German law there was no clear basis for local courts to issue EAWs. Accordingly, some local courts had refused applications to issue EAWs.

Further, the Applicants argued that the requirement in Article 6(3) that member states inform the Council of the competent judicial authority was a mandatory requirement. At the time the EAWs were issued, the German authorities had not made the necessary notification. The Applicants sought a preliminary reference to the CJEU on both points.

The Respondents’ position was that German law did provide a sufficiently clear basis for the issue of EAWs by local courts and that notification was not a mandatory requirement. A reference on either point was unnecessary.

The Divisional Court held that there was no doubt as to the ability of the German local courts to issue EAWs. Further, notification pursuant to Article 6(3) was not a mandatory requirement. The Court declined to make a reference on either point, holding that the meaning of Articles 6(1) and (3) were acte clair.

Émilie Pottle was instructed by Stephen Fidler & Co for the first Applicant, Juliet Wells was instructed by Armstrong Solicitors for the Second Applicant.

What Next?
This is the latest in a slew of cases challenging EAWs on the basis that the authorities who issued them are not judicial authorities within the meaning of the Framework Decision. It seems likely that further challenges will be made in the near future. A reference to the CJEU was made by the Divisional Court in the case of VA, concerning the issue of whether the Bulgarian public prosecutor was capable of being a judicial authority within the meaning of the Framework Decision.

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