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Not just Hungary. German prosecutors are not able to issue European arrest warrants due to their lack of independence. The Ministry of Justice can just order t

Not just Hungary. German prosecutors are not able to issue European arrest warrants due to their lack of independence. The Ministry of Justice can just order them what to prosecute and what to drop. Relevant ruling from the European court of justice https://curia.europa.eu/jcms/upload/docs/application/pdf/2019-05/cp190068en.pdf https://curia.europa.eu/jcms/upload/docs/application/pdf/201... There was talk of changing this after the ruling, but the German government decided it would rather not.

denton-scratch 3y ago
I disapprove of the European Arrest Warrant. The power of arrest should be subject to local judicial control. A Romainian court should not be able to order the arrest of a British citizen, in Britain, without first convincing a British court that a British law has been violated. If the British citizen violated a Romanian law in Romania, that's not a matter for an international arrest warrant; it's a matter of extradition. But I'm not surprised to learn that German prosecutors are under the control of the Ministry of Justice; bringing a prosecution is normally a prerogative of the government. It's direct control of the judiciary that I find scary. Does Germany have an inquisitorial judicial system like France? In France, AIUI they use "Investigating Magistrates", who are both prosecutor and judge, and who direct police investigations. Acquittal seems improbable in such circumstances. Resistance is useless!
- tsimionescu 3y ago
  Part of the point of the EU is to align the legal systems of its member countries such that (1) they trust each others' judiciary, and (2) certain acts are criminal or not criminal across all EU member states. These are both prerequisites to the free circulation of people, and are very important to guarantee that corruption in one country doesn't completely waste EU funds. The European Arrest Warrant is just a technical means. Secondly, there are two main kinds of legal systems with respect to the separation of powers. Ones in which prosecutors are part of the executive branch, and those in which prosecutors are part of the judicial branch. In Germany, they are part of the government. In France, they are part of the judiciary. However, in the aligned EU wide system, warrants are only recognized if they are emitted by an authority in the judiciary branch. So, it's OK for French prosecutors to issue warrants (they are independent from the President), but not for German ones (the Chancellor can order them to emit one, or at least punish them if they don't). And related to the French "Investigating Magistrates", they fulfill the role of prosecutors. They do have some of the powers that judges have in the Common law system, but only some like emitting warrants (which is fine, because they are independent from the government). They do not preside over the criminal trial - there are separate judges who do that. At least that is my understanding.
  - orwin 3y ago
    > And related to the French "Investigating Magistrates Correct, mostly. They're not prosecutors. Prosecutors are controlled by the State and can't oversee an investigation. They instead ask a 'juge d'instruction' To do it. Those can be also called against the state (or on a specific investigation) and governmental bodies, by NGOs or local government. They cannot start an investigation by themselves. It's usually better for both the victims and suspects that the investigation is supervised by such magistrates, but it also have limits. Overall I'd rather have them independent like now (and have their pairs judge them _after_ issues with an investigation) than add oversight that could become political pressure.
    - deleted 3y ago
      [deleted]
    - denton-scratch 3y ago
      I'm grateful for these clarifications. > The European Arrest Warrant is just a technical means. I'm reminded of a story about a British man who was sent to Romania on an EU Warrant, and languished in jail for two years awaiting trial, on a charge that was not a crime in the UK (don't remember all the details). > Part of the point of the EU is to align the legal systems of its member countries That's EU over-reach, and one of the reasons I supported Brexit. The fact is that any attempt to align the UK legal system with (e.g.) the French system is doomed; the British legal system was established about 800 years ago, and people have relied on it over civil matters (wills, property, contracts) and criminal matters (juries, police conduct etc.) ever since. Even the way that laws are drafted is very different. I appreciate that Free Movement assumes some level of judicial interchangeability; but in fact UK and EU judicial rules are not interchangeable, and can't be made so. And yet, prior to Brexit, Free Movement was a thing; so apparently judicial uniformity wasn't really needed to make Free Movement work. For what it's worth, I'm not opposed to Free Movement; that's not at all why I supported Brexit.
      - cutemonster 3y ago
        European Arrest Warrant ... I wonder if Putin can then ask Viktor Orbán to request that someone Putin dislikes is extradited to Hungary, where Putin can then kidnap them or put something in their food
- cf1241290841 3y ago
  >Does Germany have an inquisitorial judicial system like France? In France, AIUI they use "Investigating Magistrates", who are both prosecutor and judge, and who direct police investigations. Acquittal seems improbable in such circumstances. Resistance is useless! I dont think so. The closest thing is probably the shenanigans going on with anti terror trials (§ 129b). While there is the problem of sentencing being only possible with an authorization to prosecute for said group from the ministry of justice, the really dangerous part is it being possible to read in stuff that is "known to the court" (gerichtsbekannt) at the start of the trial. So for example the court declares that its a known fact that the not illegal group xyz is a "cover organization" (tarnorganisation) for the banned organization zyx. A fact that is not part of the evidence gathering procedure and as a result cant be challenged. Which makes the rest of the trial pointless, you are already guilty. Historically its a concept first used for membership in the German communist party that found its way into anti terror trials later.

denton-scratch 3y ago

I disapprove of the European Arrest Warrant. The power of arrest should be subject to local judicial control. A Romainian court should not be able to order the arrest of a British citizen, in Britain, without first convincing a British court that a British law has been violated. If the British citizen violated a Romanian law in Romania, that's not a matter for an international arrest warrant; it's a matter of extradition. But I'm not surprised to learn that German prosecutors are under the control of the Ministry of Justice; bringing a prosecution is normally a prerogative of the government. It's direct control of the judiciary that I find scary. Does Germany have an inquisitorial judicial system like France? In France, AIUI they use "Investigating Magistrates", who are both prosecutor and judge, and who direct police investigations. Acquittal seems improbable in such circumstances. Resistance is useless!

tsimionescu 3y ago
Part of the point of the EU is to align the legal systems of its member countries such that (1) they trust each others' judiciary, and (2) certain acts are criminal or not criminal across all EU member states. These are both prerequisites to the free circulation of people, and are very important to guarantee that corruption in one country doesn't completely waste EU funds. The European Arrest Warrant is just a technical means. Secondly, there are two main kinds of legal systems with respect to the separation of powers. Ones in which prosecutors are part of the executive branch, and those in which prosecutors are part of the judicial branch. In Germany, they are part of the government. In France, they are part of the judiciary. However, in the aligned EU wide system, warrants are only recognized if they are emitted by an authority in the judiciary branch. So, it's OK for French prosecutors to issue warrants (they are independent from the President), but not for German ones (the Chancellor can order them to emit one, or at least punish them if they don't). And related to the French "Investigating Magistrates", they fulfill the role of prosecutors. They do have some of the powers that judges have in the Common law system, but only some like emitting warrants (which is fine, because they are independent from the government). They do not preside over the criminal trial - there are separate judges who do that. At least that is my understanding.
- orwin 3y ago
  > And related to the French "Investigating Magistrates Correct, mostly. They're not prosecutors. Prosecutors are controlled by the State and can't oversee an investigation. They instead ask a 'juge d'instruction' To do it. Those can be also called against the state (or on a specific investigation) and governmental bodies, by NGOs or local government. They cannot start an investigation by themselves. It's usually better for both the victims and suspects that the investigation is supervised by such magistrates, but it also have limits. Overall I'd rather have them independent like now (and have their pairs judge them _after_ issues with an investigation) than add oversight that could become political pressure.
  - deleted 3y ago
    [deleted]
  - denton-scratch 3y ago
    I'm grateful for these clarifications. > The European Arrest Warrant is just a technical means. I'm reminded of a story about a British man who was sent to Romania on an EU Warrant, and languished in jail for two years awaiting trial, on a charge that was not a crime in the UK (don't remember all the details). > Part of the point of the EU is to align the legal systems of its member countries That's EU over-reach, and one of the reasons I supported Brexit. The fact is that any attempt to align the UK legal system with (e.g.) the French system is doomed; the British legal system was established about 800 years ago, and people have relied on it over civil matters (wills, property, contracts) and criminal matters (juries, police conduct etc.) ever since. Even the way that laws are drafted is very different. I appreciate that Free Movement assumes some level of judicial interchangeability; but in fact UK and EU judicial rules are not interchangeable, and can't be made so. And yet, prior to Brexit, Free Movement was a thing; so apparently judicial uniformity wasn't really needed to make Free Movement work. For what it's worth, I'm not opposed to Free Movement; that's not at all why I supported Brexit.
    - cutemonster 3y ago
      European Arrest Warrant ... I wonder if Putin can then ask Viktor Orbán to request that someone Putin dislikes is extradited to Hungary, where Putin can then kidnap them or put something in their food
cf1241290841 3y ago
>Does Germany have an inquisitorial judicial system like France? In France, AIUI they use "Investigating Magistrates", who are both prosecutor and judge, and who direct police investigations. Acquittal seems improbable in such circumstances. Resistance is useless! I dont think so. The closest thing is probably the shenanigans going on with anti terror trials (§ 129b). While there is the problem of sentencing being only possible with an authorization to prosecute for said group from the ministry of justice, the really dangerous part is it being possible to read in stuff that is "known to the court" (gerichtsbekannt) at the start of the trial. So for example the court declares that its a known fact that the not illegal group xyz is a "cover organization" (tarnorganisation) for the banned organization zyx. A fact that is not part of the evidence gathering procedure and as a result cant be challenged. Which makes the rest of the trial pointless, you are already guilty. Historically its a concept first used for membership in the German communist party that found its way into anti terror trials later.