The execution of a European arrest warrant must be postponed if there is a real risk of flagrant denial of justice on account of deficiencies in the system of justice of the issuing member state and if the person who is the subject of the warrant is exposed to such a risk, said Advocate General Evgeni Tanchev in conclusions returned on Thursday 28 June (case C-216/18).
L. M., a Polish national who has been accused of drugs trafficking, is the subject of three European arrest warrants issued by Polish courts. After being arrested in Ireland in early May 2017, he refused to be handed over to the Polish authorities on the grounds that due to the reforms of the Polish system of justice, he runs a real risk of not receiving a fair trial in Poland.
According to European case-law (joined cases C-404/15 PPU and C-659/15 PPU), if the executing judicial authority considers that there is a real risk of inhumane or degrading treatment within the meaning of the Charter of Fundamental Rights of the EU for the person who is the subject of the European arrest warrant, the execution of the warrant must be postponed (see EUROPE 11525).
A postponement is possible only after a two-stage examination: - the executing judicial authority must firstly note that such a risk exists due, for instance, to systematic deficiencies; - it must then establish that there are serious and substantial grounds to believe that the person concerned would be exposed to such a risk.
The existence of systematic deficiencies does not necessarily mean that in a specific case, the person concerned would be subjected to inhumane or degrading treatment if surrendered to the authorities in question.
The Irish High Court, to which the case of L. M. was brought, asked the Court of Justice of the EU whether, in order for the Irish authorities to be required to postpone the execution of the European arrest warrant, they must, in line with European case-law, note the existence of the following two cumulative conditions: - the real risk of a violation of the right to a fair trial on the grounds of the deficiencies in the Polish judicial system; - if L. M. is exposed to such a risk.
The case comes in the context of the Polish government’s reforms of the national judicial system, which led the European Commission to invite the Council of the EU to note the existence of a clear risk of serious violations of rule of law in Poland (see EUROPE 12050, 12043). The Polish Minister for Justice, for instance, has replaced 149 presidents and deputy presidents of regional courts on the basis of a law that has been challenged by the Commission and it appears that one of the three arrest warrants against L. M. was issued by the regional court of Włocławek, whose president was relieved of his duties in February 2018.
In his conclusions, the Advocate General answers the Irish court’s questions in the affirmative.
Tanchev observes that it is the responsibility of the Irish judicial authority to rule on whether there is a real risk of a breach of L. M.’s right to a fair trial on account of deficiencies in the Polish system of justice.
It does not matter that the procedure triggered under article 7 of the Treaty against Poland is underway (see EUROPE 11930), because this case concerns a risk of breach of a right to a fair trial, whilst the ‘article 7’ procedure concerns a risk of breach of the rule of law.
The Advocate General then states that it is possible to postpone the execution of the European arrest warrant if there is a real risk not of breach of the right to a fair trial, but of a flagrant denial of justice.
The mutual recognition of European arrest warrants presupposes that the proceedings for the purposes of which they were issued will be carried out, in the issuing country, before an independent and impartial judicial authority.
According to Tanchev, it cannot be ruled out that the lack of independence of the judiciary of the member state of issuance could, in principle, constitute a flagrant denial of justice. This would be the case if the lack of independence is serious enough to destroy the fairness of the trial.
In a case (C-64/16) on the independence of Portuguese courts (see EUROPE 11970), the Court stresses that the notion of independence of the judiciary assumes that the body in question: - exercises its judicial duties in full autonomy, without being subject to any hierarchical or subordinate link to any other body and without receiving orders or instructions from any source whatever; - is protected from external pressure that may damage its independence of judgment and influence its decisions.
In this context, it is for the Irish court to determine whether, in this particular case, the alleged lack of independence of the Polish courts is serious enough to destroy the fairness of the trial and hence constitutes a flagrant denial of justice.
To determine this, the Irish court must work on the basis of objective, reliable, specific and duly updated information demonstrating the deficiencies of the Polish judicial system, and the ‘article 7’ procedure may be used as long as developments in the situation in Poland since the launch of the procedure at the end of 2017 are taken into account.
Secondly, L. M. must be exposed to a real risk of a breach of his right to a fair trial on account of the deficiencies of the Polish judicial system, according to the Advocate General.
Even assuming that there is a real risk of flagrant denial of justice in Poland due to recent reforms of the judicial system, it cannot be deducted from this that no Polish court would be able to guarantee it.
Therefore, in order to demonstrate that L. M. is exposed to a real risk of flagrant denial of justice, particular circumstances must be established, related either to that individual or the crime of which he is accused and which expose him to this risk.
The onus is on L. M. to prove that there are serious and substantial grounds to believe that he runs a real risk of suffering a flagrant denial of justice in Poland. For its part, the national court must assess whether, in this specific case, L.M. has shown how the deficiencies of the Polish judicial system, assuming they exist, would prevent his case from being heard by an independent and impartial court. (Original version in French by Mathieu Bion)