The Supreme Court has referred questions to the Court of Justice of the European Union (CJEU) about whether Lithuania’s Prosecutor General can be treated as a judicial authority for issuing a European Arrest Warrant (EAW). The reference is part of an appeal by Thomas Lisauskas against an order for his surrender to Lithuania for prosecution over an alleged 2012 armed robbery.
The interim ruling, delivered by Justice Finlay Geoghegan on 31 July 2018, does not decide whether the Prosecutor General meets the EU-law test. The Supreme Court said it was uncertain how national courts should determine whether a prosecutor administers, or participates in, the administration of justice. It referred four questions to the CJEU for a preliminary ruling under Article 267 of the Treaty on the Functioning of the European Union.
The questions ask whether the relevant criteria are that a prosecutor is independent of the executive and is regarded in the prosecutor’s own legal system as administering or participating in the administration of justice. The court also asked what criteria should apply if those are insufficient, whether the prosecutor’s role should be assessed under national law or objective criteria, and whether Lithuania’s Prosecutor General meets the test.
The EAW was issued by Lithuania’s Prosecutor General on 18 April 2014. Mr Lisauskas challenged surrender in the High Court, arguing, among other grounds, that the Prosecutor General was not a judicial authority under the 2002 EU Framework Decision and Ireland’s European Arrest Warrant Act 2003. The High Court rejected his objections and ordered surrender. The Court of Appeal dismissed his appeal in October 2017. The Supreme Court granted leave to appeal; the prosecutor’s status was the sole issue before it.
Evidence before the courts included affidavits from Lithuanian lawyer Simas Tokarcakas. He said Lithuania’s Constitution reserves the administration of justice to the courts, while prosecutors organise and direct pre-trial investigations and prosecute criminal cases. Information from the Prosecutor General’s office said the service was independent of the executive and Ministry of Justice and performed those prosecution functions. The Supreme Court concluded that the information obtained was limited, but could be sufficient to displace the presumption that the designated issuing authority was a judicial authority. It said the surrender decision would have to be made on the evidence available.
The Supreme Court requested that the reference be linked with a similar appeal concerning Mr Dunauskis and receive expedited treatment or priority. It declined to request the urgent preliminary ruling procedure because Mr Lisauskas was not in custody. The ruling records that other EAW cases were awaiting the appeals, including five in which respondents were detained. The source does not record the CJEU’s answer or a final Supreme Court decision on surrender.