The Supreme Court has referred questions to the Court of Justice of the European Union (CJEU) about whether the Public Prosecutor’s Office in Lübeck can issue a European Arrest Warrant. The reference leaves unresolved whether Vytautas Dunauskis may be surrendered to Germany; the Supreme Court said the Irish courts must decide the prosecutor’s status before surrender.
Germany seeks Mr Dunauskis’s surrender for prosecution over an offence allegedly committed in 1995, described in the warrant as “murder, grievous bodily injury”. The warrant was issued by the Lübeck Public Prosecutor’s Office on 13 May 2016. Mr Dunauskis, whom the judgment describes as a Lithuanian citizen living at an address in Ireland, challenged the issuing authority’s status.
The High Court rejected his objections and, on 20 March 2017, found that evidence had not rebutted the presumption that the Lübeck prosecutor was a judicial authority. It relied in part on information that no instruction had been given in this case by the Schleswig-Holstein Ministry of Justice or the Director of Public Prosecutions. The Court of Appeal upheld that decision in 2017.
In the appeal, Mr Dunauskis relied on expert evidence about German law, including provisions requiring prosecutors to follow official instructions from superiors. The Lübeck office responded that the ministry was not authorised to instruct it directly, although it could instruct the Director of Public Prosecutions, who could in turn instruct the Lübeck office. It said no instruction had been given in this case.
The Supreme Court said the evidence indicated that the Lübeck office could be subject, indirectly, to directions from the ministry, provided they were lawful and notified to the state parliament’s president. It also said there was no evidence of a direction concerning this warrant. The court described the prosecutor’s role as including investigations, indictments and prosecutions, while noting that German courts issue national arrest warrants and prosecutors cannot perform judicial functions. It said it was uncertain whether that role amounted to administering or participating in the administration of justice for the EU test.
The court referred five questions to the CJEU. They ask how prosecutorial independence from the executive should be assessed, whether possible ministerial direction is compatible with that independence, and whether a prosecutor with the described functions qualifies as a judicial authority under the European Arrest Warrant Framework Decision. The final question asks whether the Lübeck prosecutor specifically meets that definition.
The Supreme Court did not request the urgent preliminary ruling procedure because Mr Dunauskis had been released on bail. It asked for the reference to be linked with a related appeal and considered for expedited treatment or priority. The judgment says his bail required daily reporting to a local police station and barred him from leaving Ireland.