The Divisional Court handed down its decision on 6th May 2020, in a renewed permission hearing, ruling that German local courts were competent to issue European Arrest Warrants: Shirnakhy & Hosseinali v Weiden Local Court, Germany, [2020] EWHC 1103 (Admin), Nicola Davies LJ and Lewis J presiding.
The Applicants sought to argue that the Amtsgerichte, the local courts, were not judicial authorities within the meaning of Article 6(1) of the Council Framework Decision 2002/584/JHA of 13 June 2002 ("the Framework Decision"). The challenge was brought on the basis that there was no legal power under German law conferred upon the local courts to issue EAWs. Reliance was placed upon expert evidence from a German lawyer in support.
In a nutshell, it was contended that there is no direct regulation on jurisdiction for issuing an EAW in German law. The Federal Government delegated the powers concerning extradition requests to the Länder and, in turn, the Ministries of Justice in the Länder had delegated the power to the public prosecutors’ office. Since the CJEU decisions of 27th May 2019 (Cases C-508/18 and C- 82/19 PPU), which concluded that German prosecutors were not competent, no change had been made to German laws. Accordingly, no Germany body had the power to issue an EAW.
The Applicants also argued that the requirement under Article 6(3) of the Framework Decision that notification be provided to the European Council of the status of the Amtsgerichte as an issuing judicial authority had not been complied with, at the time these EAWs had been issued and, consequently, the EAWs were invalid.
The Divisional Court was loath to involve itself in the “internal affairs” of another member state, finding that it is a matter for Germany to organise such matters and choose which judicial bodies are to have the appropriate authority to issue an EAW. So long as the body is a ‘judicial body’ and is not therefore subject to executive influence, that is sufficient to comply with Article 6. The courts here could not be required to adjudicate on the laws of another state in this regard.
The expert evidence did not, in the Court’s view, cast any real doubt upon the local court’s competence to issue an EAW.
The Divisional Court acknowledged that Germany had not provided the notification under Article 6(3) at the relevant time, but this was not considered to be a precondition to the validity of the EAWs concerned.
Accordingly, this decision has put a stop to any legal challenges brought under s2 of the Extradition Act 2003 to undermine the validity of a German EAW on the grounds that it has been issued by a local court.
Louisa Collins is a barrister specialising in extradition, international crime and human rights law. Louisa has been ranked in Chambers and Partners since 2017 as a leader in the field of extradition at the London Bar. Louisa is also ranked in Legal 500 for her work in international crime and extradition.
