Why Is a Redefinition of the Autonomous Concept of an 'Issuing Judicial Authority' in European Arrest Warrant Proceedings Needed?

Abstract

Defining the concept of an “issuing judicial authority” in European Arrest Warrant (EAW) proceedings is one of the starting points for formulating the principles of effective judicial protection in emerging “European criminal procedure”. There is no potential for this concept to be homogeneous for all instruments of cross-border cooperation in criminal matters, as the EAW mechanism may result in consequences for the individual incomparably more severe than other instruments. The uniqueness of the EAW mechanism has not yet been properly addressed, both by EU legislative policy and in the jurisprudence of the Court of Justice. Given the deficiencies of effective judicial protection of the individual at the stage of issuing the EAW, the principle of mutual recognition seems to have taken too much priority in the approach adopted. The EAW procedure should be more individual-centred at the initial stage, otherwise the national courts executing an EAW will face an ongoing problem with imperfect assessment of the qualities necessary for an “issuing judicial authority”. Removing the concept of an “issuing judicial authority” from the procedural autonomy of Member States, and placing it within the scope of the EU’s minimum standards on effective judicial protection of the individual could be helpful in solving this problem.