The High Court has referred questions to the Court of Justice of the European Union about whether the Public Prosecutor’s Office in Zwickau could issue a European Arrest Warrant and whether it was sufficiently independent of the executive. The referral was made on 4 February 2019 in proceedings concerning a request to surrender Bogdan Cornea to Germany for prosecution.
The court did not decide whether Mr Cornea should be surrendered. It said it could not deliver a final judgment until the Court of Justice answered the questions. Mr Cornea remained in custody solely in connection with the warrant and was not a candidate for bail, according to the reference.
Germany sought his surrender in relation to seven alleged organised or armed robbery offences. The warrant was issued by the Zwickau Public Prosecutor’s Office on 15 March 2018 and endorsed by the High Court for execution on 12 September 2018. Mr Cornea was arrested on 15 October 2018 and remanded in custody. The potential maximum penalty for the offences was stated as 10 years.
Mr Cornea objected that the Zwickau prosecutor was not a judicial authority under the European Arrest Warrant framework and was not independent of the executive. His case relied on expert evidence from German lawyer Professor Hans-Walter Forkel, including material previously used in another case. The High Court recorded that the German prosecutor’s office shared the view that prosecutors were subject to a possible hierarchy of instructions, while stating that the Zwickau investigations had been conducted without political interference and that no instructions had been issued in the case.
The German authorities also told the Irish Department of Justice and Equality that a Zwickau court judge had issued the underlying national arrest warrant, and that German and Saxon rules empowered public prosecutors to issue surrender requests. The High Court noted that the national warrant was judicially issued, but that no German court or judge had approved the European warrant.
The High Court said it followed the Supreme Court’s assessment of materially similar expert evidence and information in a separate reference involving the Lübeck prosecutor. It remained uncertain about the required test for executive independence and the role a prosecutor must play in administering justice to qualify as an issuing judicial authority.
The five questions sent to the Court of Justice included whether independence should be assessed under national law, whether a prosecutor subject to possible ministerial direction could qualify, and whether the Zwickau prosecutor met the EU definition. The High Court also requested the urgent preliminary ruling procedure, citing Mr Cornea’s custody and the need to conclude the surrender proceedings without delay. The source records the request; it does not give the Court of Justice’s response.