The Meaning of Judicial Authority after Assange

6 Pages Posted: 11 Jun 2015 Last revised: 11 Aug 2015

See all articles by Veronika Fikfak

Veronika Fikfak

University of Cambridge - Faculty of Law

Date Written: June 9, 2015

Abstract

In 2012 the Supreme Court rendered a decision rejecting a challenge to the validity of the European Arrest Warrant (EAW) issued by Sweden against Julian Assange. In the decision, the Court held that the Swedish prosecutor constituted a 'judicial authority' under the EU Council Framework Decision instituting the EAW and under national legislation, namely Part 1 of the United Kingdom Extradition Act 2003, which was enacted to give domestic effect to the requirements of the Framework Decision. Whether the Swedish prosecutor could be considered the issuing 'judicial authority' within the meaning of both domestic and European law was crucial to the enforcement of the EAW in the UK. Since the Assange decision, however, the Supreme Court has adopted a new approach to the interpretation of the term 'judicial authority'. Whilst in Assange the Supreme Court used the principles of the Vienna Convention on the Law of Treaties 1969 in the interpretation of the Framework Decision and looked to Member States to determine the 'accepted' state practice according to which the term 'judicial authority' should be understood, it has subsequently taken another approach. In Bucnys, Sakalis, Lavrov v Ministry of Justice Lithuania and Ministry of Justice Estonia [2013] UKSC 71, the Supreme Court held that a Framework Decision was simply not a treaty in the typical sense of the term, and, as a consequence the rules of interpretation contained in the VCLT were not applicable to the EAW. Therefore, the practice of Member States as to the understanding of the 'judicial authority' was irrelevant to the definition of the term. Instead, the Supreme Court in Bucnys insisted that the term 'judicial authority' had an autonomous meaning: a meaning independent of the views and practices of Member States of the EU.

The note clarifies how important the use of the VCLT was as an interpretative tool in the outcome in Assange and how the subsequent decision in Bucnys rejected its applicability to the Framework Decisions and its utility in EU law.

Keywords: Assange, European Arrest Warrant, judicial authority

Suggested Citation

Fikfak, Veronika, The Meaning of Judicial Authority after Assange (June 9, 2015). [2015] 131 Law Quarterly Review 192; University of Cambridge Faculty of Law Research Paper No. 46/2015. Available at SSRN: https://ssrn.com/abstract=2616397

Veronika Fikfak (Contact Author)

University of Cambridge - Faculty of Law ( email )

10 West Road
Cambridge, CB3 9DZ
United Kingdom

Register to save articles to
your library

Register

Paper statistics

Downloads
98
rank
262,791
Abstract Views
648
PlumX Metrics