Independent Prosecutors in Schwerin

A perennial topic of public debate in Italy is the question of separating the career paths of prosecutors and judges. The recent referendum on this issue will certainly not put an end to this dispute once and for all. From a German perspective, the conflict is only partially understandable. Although in Germany the career paths of prosecutors and judges within the respective state judicial systems—Germany is a federal republic, and the judiciary is a matter for the single states!—are generally interchangeable, a key difference lies in the fact that judges are subject exclusively to the law, whereas prosecutors are subject to the directives of the respective state’s minister of justice

This is one of the reasons why the European Court of Justice, in its judgment of May 27, 2019 (Case No. C-508/18), ruled that a European arrest warrant issued by a German prosecutor does not meet the requirements of EU law for an independent judicial authority.

Should German prosecutors also be allowed to investigate with complete freedom? In Germany, the discussion is conducted with significantly less passion than the Italian debate on the separation of the two branches. Nevertheless, compelling arguments are put forward on both sides. The German Bar Association takes the view that, without the right of the Minister of Justice to issue instructions, the public prosecutor’s office would become a part of the executive branch not subject to parliamentary oversight. This would create a democratic legitimacy gap.

The opposing view, however, sees the danger of political influence on the decisions of law enforcement agencies and therefore calls for greater institutional independence for the public prosecutor’s office. The discussion has recently gained new momentum because the Minister of Justice of Mecklenburg-Western Pomerania (capital: Schwerin) has voluntarily refrained from exercising her right to issue directives to the public prosecutor’s offices. She is a member of the party Die Linke and thus stands outside the political mainstream in Germany. Her voluntary decision to forgo exercising this right is therefore likely to remain an isolated case. With regard to international legal assistance, it would be desirable for the federal states to agree on a uniform regulation; it remains to be seen whether an arrest warrant issued in Schwerin can now be executed in Italy!

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