Court of Appeal dismisses appeal confirming Prosecutor General is a judicial authority for EAW surrender.

THE COURT OF APPEAL

Neutral Citation Number: [2017] IECA 267

Birmingham J.

Mahon J.

Hedigan J.

No. 2017/106

MINISTER FOR JUSTICE AND EQUALITY

APPLICANT

AND

TOMAS LISAUSKAS

RESPONDENT

JUDGMENT of Mr. Justice George Birmingham delivered on the 20th day of October, 2017

1. Lithuania has sought the surrender of Mr. Tomas Lisauskas, a Lithuanian citizen so that he can stand trial for armed robbery. In a

judgment dated 27th February, 2017, the High Court (Donnelly J.) rejected various grounds of challenge to his surrender by Mr.

Lisauskas. A central issue in the proceedings before the High Court was whether the Office of the Prosecutor General of the Republic

of Lithuania, who issued the European Arrest Warrant (EAW) can be considered a “judicial authority” within the meaning of the

European Arrest Warrant Act 2003, as amended (The 2003 Act).

2. On 9th March, 2017, Donnelly J., pursuant to s. 16(11) of the 2003 Act, certified that her decision of 27th February, 2017,

involved a point of law of exceptional public importance and that it was desirable in the public interest that an appeal should be taken

to the Court of Appeal, the point of law being the following:

(i) In determining whether a prosecuting authoring is a valid issuing judicial authority for the purposes of the

European Arrest Warrant Act 2003 (as amended):

(a) Is the High Court entitled to rely on a presumption that the issuing judicial authority is a valid issuing

judicial authority within the meaning of the European Arrest Warrant Act 2003 (as amended)?

(b) Is the correct test that the prosecuting authority be independent from the executive and

participate in the administration of justice?

3. As we will shortly see, the issue of what bodies can be considered as a judicial authority is one that has been considered on a

number of occasions in our courts, in the courts of the neighbouring jurisdiction and in the Court of Justice of the European Union

(CJEU). In this case, it was not in dispute that Lithuanian law granted the Prosecutor General the right to issue a European Arrest

Warrant but what was in contention was whether that was a valid designation having regard to the terms of the 2002 Council

Framework Decision on the European Arrest Warrant and the surrender procedures between Member States and the 2003 Act. It is to

be noted that the respondent, Mr. Lisauskas, put before the Court evidence by way of affidavits of Simas Tokarcakas, a Lithuanian

lawyer. Before going on to discuss the legal issues to arise, it is convenient to set out his evidence at this stage. The summary that

follows is taken from the judgment of Donnelly J. at para. 23 onwards. The High Court accepted that he was an expert on Lithuanian

law. In an affidavit of 9th June, 2016, Mr. Tokarcakas stated that the Prosecutor General, according to the laws of Lithuania, did not

constitute a part of the judiciary. Mr. Tokarcakas said that the EAW was issued exclusively by the prosecutor and none of the

judiciary either approved or carried out any control or review of the issue of the European Arrest Warrant. He said that when a court

makes an order for the arrest of a person suspected of having committed a criminal offence and the person is hiding or cannot be

found, the Prosecutor General’s Office, upon the receipt of the court order to arrest the person, issues a European Arrest Warrant. He

said that there was no court judgment in respect of the respondent’s “fault” as he is only charged with a criminal offence.

4. A second affidavit was sworn by Mr. Tokarcakas some days later, verifying information contained in a supplemental report. On this

occasion, Mr. Tokarcakas explained that the Constitution of the Republic of Lithuania was an integral and directly applicable piece of

legislation – a supreme law providing the essential mechanism of the state organisation and legislation enforcement guidelines. The

Constitution regulates the three branches of government: legislative, executive and judicial. The Constitutional Court of Lithuania

interprets the norms of the Constitution and thereby creates a “living constitution” which is considered to be an integral part of the

Constitution. Section IX of the Constitution is called “The Court” and this article regulates the exclusive constitutional competence of

the Prosecutor. Mr. Tokarcakas stated that at first glance it might seem that the Prosecutor was part of the judiciary. However, an

in-depth analysis of the legislation and the doctrine that emerged from the rulings of the Constitutional Court rejected such an

erroneous conclusion. The “Law on the Prosecutor’s Office” sets out that a Prosecutor is appointed to his or her post in accordance

with the Law on the Prosecutor’s Office. Mr. Tokarcakas concluded, upon systematic analysis of the Lithuanian regulatory legislation,

that in the constitutional sense, the Prosecutor is any state official of the Republic of Lithuania appointed to the Prosecutor’s Office

and assigned the special powers of the Prosecutor. Mr. Tokarcakas stated that all Prosecutors have to be classified:

“as part of the same system of the Prosecutor’s Office which, as it has been discussed above, is independent and cannot

be equated to the judicial or let alone be considered as part of the judicial.”

5. The Constitutional Court has repeatedly held that the constitutional principle of the separation of powers means that the

legislative, executive and judicial powers are to be separated and to be sufficiently independent from one another. There has to be a

balance between the three branches of government. The judiciary (or “the courts” as it is referred to in the Lithuanian Constitution)

is one of the branches of the government provided for in the constitution. The constitutional purpose and competence of the judiciary

is to administer justice. In accordance with Article 109, para. 1 of the Lithuanian Constitution, justice in Lithuania shall only be

administered by the courts.

6. The Constitutional Court, in rulings of 13th May, 2004, 16th January, 2006, 28th May, 2008 and 7th April, 2011, has stated that

according to the Constitution, a prosecutor does not administer justice. Justice is also not being administered during the pre-trail

investigation which is organised by a prosecutor. According to the Constitution, the administration of justice is solely the function of

the courts (i.e. the judiciary) and this function determines the special place of the judiciary in the government system. The

Constitutional Court in its rulings has repeatedly stated that no other institution or public authority other than the courts may perform

this function, i.e. administer justice. Mr. Tokarcakas then goes on to deal with the Constitutional Court’s case law referring to a

court’s duty in criminal proceedings to be an impartial arbiter objectively evaluating data. Under Art. 118, para. 1 of the Lithuanian

Constitution, the pre-trial investigation is organised and directed by a Prosecutor. The fundamental constitutional function of the

Prosecutor is to accuse. Mr. Tokarcakas expresses the view:

“This subject of the criminal proceedings is per se biased because its main task and purpose is to prove the guilt of the

suspected/accused person(s).”

He says that the courts’ constitutional function of administering justice is fundamentally different from that of leading and controlling

a pre-trial investigation, pressing charges etc. In administering justice, courts examine an already prepared criminal case and decide

on the question of culpability of the accused and then sentence or acquit the accused. Mr. Tokarcakas stated that the Office of the

Prosecutor of the Republic of Lithuania is a centralised public authority with specific authoritative powers but it does not constitute

part of the executive or the judiciary. The Prosecutor is a state official with a specific mandate whose function is different from the

administration of justice – no one else other than the Prosecutor can organise and direct a pre-trial investigation. Similarly, justice

may be administered by no one other than the courts. Mr. Tokarcakas summarised the situation as being that a Prosecutor is part of

an independent Prosecutor’s Office. In spite of the fact that the Prosecutor’s competence is enshrined in the Constitution under s. IX

called “the Courts”, detailed analysis of the Constitution of the Republic of Lithuania and other regulatory provisions reject the

hypothesis that any Prosecutor in the Republic of Lithuania, including the Prosecutor General, could be identified as a judicial authority

or be regarded as an element of the judiciary. He then went on to say that in view of the conclusions that he reached, that the EAW

issued by the Prosecutor General could not be considered to be issued by a judicial authority.

7. Council Framework Decision of 2002 on European Arrest Warrant and Surrender Proceedings between Member States provides as

follows:

“ General Principles

Article 1

Definition of the European Arrest Warrant and obligation to execute it

1. The European arrest warrant is a judicial decision issued by a Member State with a view to the arrest and surrender by

another Member State of a requested person, for the purposes of conducting a criminal prosecution or executing a

custodial sentence or detention order.

2. Member States shall execute any European arrest warrant on the basis of the principle of mutual recognition and in

accordance with the provisions of this Framework Decision.

3. This Framework Decision shall not have the effects of modifying the obligation to respect fundamental rights and

fundamental legal principles as enshrined in Article 6 of the Treaty on European Union.”

Article 6

“Determination of the competent judicial authorities:

“1. The issuing judicial authority shall be the judicial authority of the issuing Member State which is competent to issue a

European arrest warrant by virtue of the law of that State.

2. The executing judicial authority shall be the judicial authority of the executing Member State which is competent to

execute the European arrest warrant by virtue of the law of that State.

3. Each Member State shall inform the General Secretariat of the Council of the competent judicial authority under its

law.”

[Emphasis added for the purpose of drawing attention to phrases particularly in issue in the context of the present case.]

8. The Council Framework Decision was given effect in Ireland by the European Arrest Warrant Act 2003, which has been much

amended. The interpretation section contains the following definitions:

“‘judicial authority’ means the judge, magistrate or other person authorised under the law of the Member State concerned

to perform functions the same as or similar to those performed under section 33 by a court in the State

[Section 33 provides that a court may upon an application made by or on behalf of the Director of Public Prosecutions,

issue a European arrest warrant in the circumstances there stated.]

‘issuing judicial authority’ means, in relation to a European arrest warrant, the judicial authority in the issuing state that

issued the European arrest warrant concerned.”

9. An early consideration of the issue of the identity and character of the issuing authority is to be found in the decision of Minister

for Justice Equality & Law Reform v. Saulius Forenca [2007] IEHC 199. Peart J. in the course of his judgment commented:

“The respondent pleads in his points of objection that the fact that the Minister for Justice, as the judicial authority, has

issued the European arrest warrant rather than a Judge, ‘flies in the face of the rationale underlying the European Arrest

Warrant System and does not trigger the principle of mutual recognition the cornerstone of judicial cooperation.’ In my

view it is not for the respondent to raise the question of whether the Minister for Justice in the Republic of Lithuania

should or should not be the judicial authority for the purposes of issuing a European arrest warrant. That country has

been designated by the Minister of Foreign Affairs for the purpose of s. 3 of the Act and therefore if a European arrest

warrant have been issued by the Minister for Justice in the issuing state in his capacity as the “judicial authority” this

Court respects that warrant as one properly issued in the issuing state for the purpose of the Framework Decision and the

Act. It would be a matter for the Minister for Foreign Affairs to be satisfied by such a matter before designation takes

place, and it is not for the respondent to raise the matter on an application such as the present one.”

10. The decision of Peart J. has been overtaken by subsequent events. However, its emphasis on designation of a country remains of

interest.

11. The issue was considered for the first time by the Supreme Court in the case of Minister for Justice v. Brunel & McArdle [2015]

IESC 56. That case establishes that there is a presumption that the designated issuing judicial authority is an issuing judicial authority

in accordance with the 2002 Framework Decision. However, it is a presumption that can be rebutted by cogent evidence. The

appellant says that is precisely what happened in this case and the evidence adduced established clearly that the Prosecutor General

in Lithuania did not administer justice.

12. In the course of her judgment Brunel and McArdle, Denham C.J. observed as follows:

“There is a presumption that when a European arrest warrant is issued, and stated to be issued, by a public prosecutor or

judge of a Member State acting as the judicial authority designated by the Member State, he or she is the judicial

authority within the meaning of the Framework Decision and the Act implementing it. If there are cogent grounds

established in a particular case which could lead the court to concluding that the issuing authority was not a judicial

authority that would be a different matter.”

The reference to the fact where a European Arrest Warrant is issued, and stated to be issued by a public prosecutor or judge of a

Member State acting as the judicial authority, then he or she is the judicial authority will be noted as will the fact that public

prosecutors and judges are linked together as those in respect of whom the presumption applies.

13. A case where a conclusion was reached that on the basis of cogent evidence, the issuing authority was not in fact a judicial

authority is the case of Minister for Justice and Equality v. M.V. [2015] IEHC 524. While the conclusion of the case was that the

Ministry of Justice of Lithuania was not an issuing authority, passages from the judgment of Donnelly J. provide significant support to

the Minister in the context of the present case. At para. 34 she commented:

“From the Supreme Court decision in McArdle and Brunel, it is of particular note that the presumption contained in para.

51 of the judgment and set out above is limited to a warrant issued by a public prosecutor or judge of a Member State

acting as the judicial authority designated by the Member State. The Supreme Court could have, but did not, widen the

presumption to include a ‘person’ or ‘body’ stated in the EAW to be the judicial authority designated by the Member State

....

The presumption on its face is limited to those entities to whom the designation ‘judicial’ customarily and commonly

applies.”

At para. 36, Donnelly J. commented:

“The judgment of the Supreme Court, therefore, is to be understood as confirming that insofar as it is possible, the Act of

2003 is to be interpreted in accordance with the Framework Decision. The Framework Decision clearly places the EAW

system within the sphere of judicial cooperation. A respondent is entitled to raise issues as to the nature of the ‘judicial

authority’ but bears the burden on the issue. Judges and public prosecutors are to be presumed to be a judicial authority

and the mere fact of being a public prosecutor is not sufficient to establish that he or she is not an issuing judicial

authority within the meaning of the Act of 2003 and the Framework Decision. Cogent grounds may be produced to show

that an issuing authority was not a judicial authority.”

Again, the equivalence of judges and public prosecutors is to be noted. The decision in McArdle & Brunell delivered on 25th June,

2015, preceded three cases from the CJEU; Poltorak (C-452/16 PPU), Ozcelik (C-453/16 PPU and Kovalkovas (C-477/16 PPU) where

decisions were delivered on 10th November, 2016. However, Donnelly J. noted the consistency of approach between the Supreme

Court and the CJEU.

14. However, before considering those CJEU cases, it may be useful to detour and go back in time a little in order to refer briefly to

the decision of the UK Supreme Court in Assange v. Swedish Prosecution Authority [2012] 2 A.C. 471. For my part, I have found the

elaborate analysis of the decision by the President of the Court of particular assistance. At the start of his judgment, Lord Philips

commented that the point of law in issue was whether the Swedish prosecution authority was a “judicial authority” within the

meaning of the Extradition Act 2003 (The United Kingdom equivalent of the 2003 Act.). Lord Phillips said it was a point of general

importance as EAWs are issued by the Public Prosecutor in many Member States. Lord Philips helpfully refers to the background to the

Framework Decision, the Convention of 10th March, 1995 on a simplified extradition procedure between Member States of the EU and

the Convention of 27th September, 1996 relating to extradition between Member States. Of particular relevance was the integration

into the European Union under the Amsterdam Treaty of 1997 of the Schengen Agreement. There followed the European Council

meeting of October 1999 held at Tampere and the decision to replace traditional extradition arrangements with a European Arrest

Warrant system based on the principle of mutual recognition, in effect a system of backing of warrants.

15. My reason for referring to the background is that the European Arrest Warrant system sought to put in place an improved and

simplified system. It is clear that Prosecutors General played a significant role in relation to extradition from 1957. It seems hard to

believe that a scheme designed to improve and simplify would have excluded a role for Prosecutors or that if it was doing so for some

reason, that such a radical and dramatic departure from a long established practice would not have been highlighted. One of the five

routes to his conclusion taken by Lord Philips was to have regard to what not only Member States, but also the Commission and the

Council did after the Framework Decision took effect, which he says was in stark conflict with a definition of judicial authority that

restricted its meaning to a judge. Lord Philips points out that at that point eleven Member States had designated a Prosecutor as the

issuing judicial authority in relation to fugitives sought for prosecution. Ten, not in every case the same, designated a Prosecutor as

the issuing judicial authority in respect of fugitives who have been sentenced. He reviewed a large number of Mutual Evaluation

Reports. None contained adverse comment on the use of Prosecutors. I appreciate that counsel for the appellant has not contended

that Prosecutors are not per se excluded from being considered as judicial authorities, and in the light of the authorities, how could

he do otherwise, but one is still left with the clear sense that he yearns for a situation where warrants are judge-issued. Extensive as

was the consideration of the issue in Assange, this was not the last word on the topic and the UK Supreme Court returned to the

issue in Ministry of Justice Republic of Lithuania v. Bucnys [2014] A.C. 480. In that case, the court was considering requests for the

surrender of three persons to serve sentences, two in Lithuania and one in Estonia. At issue was the role of the Ministry of Justice in

Lithuania and in Estonia. In later cases, such as Binder v. Public Prosecutors Office Memmingem Germany [2014] EWHC 133 (Admin),

it has been argued that the effect of Bucnys is that courts at first instance are entitled to revisit the issue of whether or not a Public

Prosecutor is a judicial authority and determine that issue by reference to the evidence available in the particular case in question. In

that case, Wyn Williams J. analysed each of the majority judgments in Bucnys. He felt that far from overruling Assange, the Buncnys

judgment in fact was endorsing it. He pointed out that in Bucnys, there were many references in the judgment of Lord Manse to

Assange, none of which appear to suggest that he was of the opinion that the UK Supreme Court should conclude that Assange was

wrongly decided. In my view, the decisions of the courts in England and Wales and of the UK Supreme Court provide strong support

for the view that Public Prosecutors can be regarded as judicial authorities. I regard it as highly significant that such a clear view

emerges from another common law jurisdiction within the EAW system.

16. I turn now to consider the three decisions of the CJEU. In the case of Poltorak, the Court of Justice found that the Swedish Police

Service was not a judicial authority for the purposes of Article 6(1) of the Framework Decision. However, the court was at pains to

make clear that the requirement that a European Arrest Warrant be issued by a judicial authority did not mean that it had to be

issued by a judge or a court. Paragraph 33 of the judgment provides:

“Thus, as regards the wording of Article 6(1) of the Framework Decision, it should be noted that the words ‘judicial

authority’ contained in that provision are not limited to designating only the judges or courts of a Member State, but may

extend, more broadly, to the authorities required to participate in administering justice in the legal system concerned.”

In their written submissions, the Minister has emphasised the words “participate in administering justice in the legal system

concerned”. However, the appellant criticises Donnelly J. and says that she cast the net too wide and that her reference to

“participating in administering justice” is a serious error which can be traced to what is categorised as this obiter remark in Poltorak.

The Opinion of Advocate General Campos Sanchez-Bordona is of some assistance in this regard. The Advocate General commented:

“ 39. With regard to the interpretation of Article 6 and firstly, to the usual meaning of the words ‘authority’ and ‘judicial’ it

should be pointed out that the former of those terms refers to an entity which exercises control in some sphere of public

life because it has been allocated powers and has the legal capacity to do so. The adjective ‘judicial’ brings to the noun it

accompanies the connotation that the authority has to belong to the administration of justice as opposed, in accordance

with the traditional separation of powers, to the legislative and executive powers

40. Thus, the language versions of the Framework Decision which I have used invariably mention justice: “autorite

judiciaire” in the French version; “judicial authority” in the English; “justiz behorde” in the German version; “autorita

giudiziaria” in the Italian version; “autoridade judiciaria” in the Portuguese version; “rattsliga myndighet” in the Swedish

version and “tiesu iestade” in the Latvian version.

41. There is already at this stage an early indication that the authority referred to, in particular, by Article 6 of the

Framework Decision has to be part of the administration of justice. And this pointer is confirmed, as the rechtbank

Amsterdam (Court of First Instance, Amsterdam) rightly points out in the legislative history, both the ECE [European

Convention on Extradition] and the proposals for a Framework Decision opted to use the expressions ‘competent authority’

and ‘judicial authority’ respectively, as including the courts and the Public Prosecutor’s Office but expressly excluding the

police authority.”

17. In the case of Kovalkovas, it was held that the term “judicial authority” is not limited to designating only the judges or courts of a

Member State, but may extend more broadly to the authorities required to participate in administering justice in the legal system

concerned. It was found, however, that judicial authority cannot be interpreted as an organ of the Executive of a Member State such

as the Lithuanian Ministry of Justice. That case related to the execution in the Netherlands of a European Arrest Warrant issued by

the Ministry of Justice of the Republic of Lithuania with a view to executing a custodial sentence there. At para. 32 and subsequent

paragraphs, the judgment stated:

“32. In those circumstances, the meaning and scope of the term ‘judicial authority’ within the meaning of Article 6(1) of

the Framework Decision cannot be left to the assessment of each Member State (see, by analogy, judgments of 17th July

2008 Kozlowski CC-6608, EU: C: 2008:437, para. 43 and of 16th November 2010 Mantello C-261/09, EU: C: 2010 683,

para. 38).

33. It follows that the term ‘judicial authority’ contained in Article 6(1) of the Framework Decision requires, throughout the

Union, an autonomous and uniform interpretation, which in accordance with the settled case law of the Court, must take

into account the terms of the provision, its context and the objective of the Framework Decision (see, by analogy,

judgment of 28th July 2016 JZ, C-294/16 PPU, EU: C: 2016: 610, para. 37 and the case law cited).

34. Thus, as regards the wording of Article 6(1) of the Framework Decision, it should be noted that the words ‘judicial

authority’ contained in that provision are not limited to designating only the judges or courts of a Member State, but may

extend more broadly to the authorities required to participate in administering justice in the legal system concerned

(judgment of 10th November 2016, Poltorak C-452/16 PPU, para. 33).

35. It must, however, be held that the term ‘judicial authority’, referred to in that provision, cannot be interpreted as also

covering an organ of the Executive of a Member State, such as a Minister.

36. In the first place, it is generally accepted that the term ‘judiciary’ does not cover the ministries of Member States.

That term refers to the judiciary, which must, as the Advocate General observed in point 34 of this Opinion, be

distinguished in accordance with the principles of the separation of power which characterises the operations of the rule

of law from the Executive. Thus, judicial authorities are traditionally construed as the authorities that administer justice,

unlike, inter alia, ministries or other government organs, which are within the province of the Executive.”

The specific reference at para. 34 of the judgment to Poltorak will be noted.

18. The third of the cases where the issue of who can be regarded as a judicial authority was considered by the CJEU was the case

of Ozcelik. At issue there was the confirmation by the Public Prosecutor’s Office in Hungary of a National Arrest Warrant issued

previously by a Police Service. The Court found that the confirmation constituted a “judicial decision” within the meaning of Article

8(1)(c) of the Framework Decision. The Court of Justice held that the interpretation of ‘judicial authority’ and that of ‘judicial decision’

were linked and that the notion of judicial in both terms was connected to the administration of justice. The Court found that the

decision of the Public Prosecutor constituted the basis for the European arrest warrant and that the Public Prosecutor’s Office was

responsible for the issuing of the National Arrest Warrant. In the course of the judgment, the Court commented:

“31. Thus the question arises as to whether the decision of a public prosecutor’s office is covered by the term ‘judicial

decision’, within the meaning of Article 8(1)(c) of the Framework Decision.

32. In that regard, the Court has held, in paragraphs 33 and 38 of the judgment of 10 November 2016, Poltorak (C-452/16

PPU), that in the context of the Framework Decision, and in particular, in the context of Article 6(1) thereof, the term

‘judicial authority’ must be interpreted as referring to the Member State authorities that administer criminal justice, but

excludes police services.

33. Given the need to ensure consistency between the interpretations of the various provisions of the Framework

Decision, the above interpretation appears, in principle, transposable to Article 8(1)(c) thereof. That provision must,

therefore, be interpreted as meaning that the term ‘judicial decision’ covers decisions of the Member State authorities

that administer criminal justice, but not the police services.

34. In the light of that finding, it is appropriate to note that, since the public prosecutor’s office constitutes a Member

State authority responsible for administering criminal justice (see, to that effect, judgment of 29 June 2016, Kossowski,

C-486/14, EU:C:2016:483, paragraph 39), the decision of such an authority must be regarded as a judicial decision, within

the meaning of Article 8(1)(c) of the Framework Decision.”

19. I have taken some time to refer to decisions of the Irish courts, of courts in England and Wales and of the Court of Justice of the

European Union. It seems to me that that a review of the decision clearly establishes that the starting point has to be a recognition

that Prosecutors will generally be regarded as “judicial authorities”. It seems to me that a review of the decisions goes significantly

further than saying that Prosecutors are not per se precluded from being so regarded. The appellant has argued that the decisions of

the CJEU did not alter the law applicable and the law remains as it was when set out in McArdle & Brunel. It seems to me that the

issue is not whether the decisions of the CJEU affected any change in the pre-existing law, but the striking consistency of approach

between the Irish courts, the CJEU, and insofar as relevant, the courts in the United Kingdom. It seems to me that the approach of

Donnelly J. is true to that taken by the CJEU in the three decisions that have been discussed and that there is no basis for the

criticism that she introduced a test of participation lower than that which previously applied. I do not believe that the evidence of Mr.

Lisauskas goes anywhere near rebutting the presumption. I am satisfied that there is no obligation on Prosecution Offices to furnish

information about themselves with a view to qualifying themselves. An aspect of the principles of mutual respect and cooperation is

that the onus is firmly on a respondent who raises issues as to the nature of the judicial authority. One cannot lose sight of the fact

that Lithuanian law made provision for European Arrest Warrants being issued by the Prosecutor General’s Office. To that extent, it

prima facie comes within the definition of judicial authority contained in the 2003 Act, being an “other person authorised under the

law of the Member State concerned to perform the functions the same or similar to those performed under section 33 by a Court in

the State”. I agree with the observations of Donnelly J. that Mr. Tokarcakas did not address the issue of crucial importance which is

whether the Public Prosecutor is a judicial authority within the meaning of the 2002 Framework Decision. Mr. Tokarcakas did not

address the question of whether the Prosecutor’s Office was required to participate in administering justice in the legal system

concerned. However, while not specifically addressed by Mr. Tokarcakas, what actually emerges from his evidence is that the

Lithuanian Prosecutor General is a national authority which participates in the administration of justice in the sense contemplated by

the 2002 Framework Decision. What emerges is that the Prosecutor is independent of both the judiciary and Executive and that he

has a clear constitutional position within Lithuanian law.

20. The reference to participation in Poltorak and subsequently in the decision of Donnelly J. echoes similar language that has been

used in other cases. So, in Gozutok and Brugte C-187/01 and C-385/01, judgment of 11th February 2003, which was two joined

cases, at para. 28, the Court, in reference to certain procedures whereby Dutch and German Public Prosecutors could discontinue

prosecutions once certain conditions such as financial payments had been fulfilled by an accused, stated:

“…in such procedures, the prosecution is discontinued by the decision of an authority required to play a part in the

administration of criminal justice in the national legal system concerned.”

21. This is a case where the judgment of the High Court is particularly detailed and comprehensive and I am in complete agreement

with the reasoning of the High Court judge. It follows that I am of the view that the High Court was entitled to rely on a presumption

that the issuing judicial authority is a valid issuing judicial authority within the meaning of the European Arrest Warrant Act 2003 (as

amended). In my view, the test applied by Donnelly J. was the correct one, namely, whether the prosecuting authority was

independent from the Executive and participated in the administration of justice. Accordingly, the High Court judge was correct in

concluding that the Prosecutor General of Lithuania was an issuing judicial authority within the meaning of the European Arrest

Warrant Act 2003.

22. For all these reasons, I would dismiss the appeal.