A judicial authority called upon to execute a European arrest warrant must refrain from giving effect to it if it considers that there is a real risk that the individual concerned would suffer a breach of his fundamental right to an independent tribunal and, therefore, of the essence of his fundamental right to a fair trial on account of deficiencies liable to affect the independence of the judiciary in the issuing Member State, explained the European Court of Justice in a ruling issued on Wednesday 25 July (Case C-216/18).
Accused of selling drugs, Polish national LM had three European arrest warrants issued against him. Arrested in Ireland on 5 May 2017, he did not consent to his surrender to the Polish authorities, on the grounds that, on account of the reforms of the Polish system of justice, he runs a real risk of not receiving a fair trial in Poland.
This case is against the backdrop of reforms to the Polish legal system by the country’s government which led the European Commission to invite the Council of the EU to note a clear risk of serious violations of the rule of law in Poland (see EUROPE 12050, 12043).
Under European case law (combined cases C-404/15 PPU and C-659/15 PPU), the execution of that warrant must be postponed after an examination in two stages: - the executing judicial authority must find that there is a real risk of inhumane or degrading treatment in the issuing Member State on account, inter alia, of systemic deficiencies. Second, that authority must ascertain that there are substantial grounds for believing that the individual concerned by the European arrest warrant will be exposed to such a risk (see EUROPE 11525).
In this case sent to it by the Irish Court of Justice, the Court of Justice used the advocate general’s reasoning (see EUROPE 12051). It explains that that refusal to execute a European arrest warrant is an exception to the principle of mutual recognition underlying the European arrest warrant mechanism and that exception must accordingly be interpreted strictly.
The Court then holds that the existence of a real risk that the person in respect of whom a European arrest warrant has been issued will suffer a breach of his fundamental right to an independent tribunal and, therefore, of the essence of his fundamental right to a fair trial is capable of permitting the executing judicial authority to refrain, by way of exception, from giving it effect.’
It says that in the case in question, the European judge takes up the two-stage procedure contained in European case law.
First stage. The High Court of Ireland must first assess the existence of a real risk of breach of LM’s fundamental right to a fair trial in Poland, due to lack of independence of Polish courts due to systemic failings or general failings of the judicial system.
To this end, the court must use objective, reliable, precise and duly updated elements. The ECJ considers particularly relevant in this connection information in the ‘Article 7’ procedure on respect of the rule of law launched by the European Commission against Warsaw.
Above all, the ECJ notes that preservation of the independence of the judicial authorities is crucial for ensuring the jurisdictional protection of litigants. It says the requirement of independence and impartiality of courts comprises two aspects: the courts in question must exercise their duties fully autonomously and must remain impartial.
These guarantees of independence and impartiality require the existence of rules, notes the ECJ, on: the membership of judicial bodies; - the appointment, duration in post and causes of abstention, disqualification and revocation of the members of the courts concerned. The demand of independence requires the judges’ disciplinary regime requires that the disciplinary system for judges has the guarantees needed to avoid any risk of the regime being used a political control system for the content of judicial decisions.
Second stage. If the Irish High Court considers that there is the real risk in Poland of violation of LM’s fundamental right to a fair trial, it should examine in a concrete and precise manner whether there are any serious and proven reasons to believe that LM would run that risk if handed over to the Poland authorities.
In order to assess the risk fun by the person in question, the implementing judicial authority should examine the extent to which the systemic or generalised failings in the country’s judicial system of the country issuing the arrest warrant are likely to affect the courts in question.
In this connection, the sought individual’s personal situation will be examined, along with the nature of the misdemeanour and the factual context underlying the arrest warrant. Any further information needed can be requested from the issuing authority.
Taking note of the ECJ’s ruling, the European Commission says that the European judge had clarified the application of a two-step procedure for decision on implementation or rejection of a European arrest warrant. It points out that the ECJ says that the information contained in Article 7 of the procedure on the rule of law is pertinent, noting that important clarifications of how to assess a court’s independence and impartiality.
At a press conference, Polish justice minister and public prosecutor Zbigniew Ziobro said that the ECJ ruling is close to the Polish government’s positions and in no point of its ruling had the ECJ noted violation of the rule of law in Poland, as the European judge had not accepted the automatic refusal to send the suspect to Poland. He said the Irish Court had learned a lesson about the procedures to be applied in similar situations. (Original version in French by Mathieu Bion)