The independent and impartial judge as the sole issuing “judicial authority” of the European arrest warrant versus the public prosecutor´s office - A divergent analysis vis-à-vis the case law of the Court of Justice of the European Union (CJEU)

Abstract

The consolidated case law of the Court of Justice of the European Union (CJEU) regarding who can be considered the issuing "judicial authority" for the purposes of a European arrest warrant (EAW), constitutes the guiding thread of this paper to support our position on the suitability of one or the other (that of judges and courts or that of the public prosecutor’s office). From our standpoint, which is divergent from that held by the CJEU, only judges or courts should be considered the issuing "judicial authority" for the purposes of the EAW, given that only they are in an adequate position with regard to the rights protected in the European Convention on Human Rights (ECHR) and the Charter of Fundamental Rights of the European Union (CFREU) to be able to issue an EAW, thus concluding that, following our reasoning, the public prosecutor would be excluded from such a function.

Keywords: Issuing judicial authority, European arrest warrant (EAW), CJEU case law, judge versus public prosecutor, Human rights.