The worsening of systemic and generalised deficiencies affecting judicial independence in Poland does not justify the automatic non-execution of all European Arrest Warrants (EAWs) issued by that country, said Advocate General Manuel Campos Sánchez-Bordona in his opinion delivered on Thursday 12 November (Cases C-354/20 and C-412/20).
In the judgment in ‘Minister for Justice and Equality’ - delivered in 2018 in the context of the reforms of the Polish judicial system - the EU Court of Justice had already ruled that a Member State’s court should not execute an EAW if it considers that the fundamental rights to an independent tribunal and to a fair trial for the person concerned are likely to be violated because of shortcomings which may affect the independence of the judiciary in the issuing State (see EUROPE 12070/1).
Despite the seriousness of the shortcomings in Poland at the time, the Court nevertheless ruled out the possibility for the executing judicial authority to refuse automatically and indiscriminately the execution of any EAW issued by the Polish courts.
In those two cases, the District Court of Amsterdam asked the Court of Justice whether the subsequent aggravation of the failings of the Polish judiciary justified its refusal to grant the surrender of a person requested by a court of that Member State without it being necessary to examine in detail the specific circumstances of each EAW.
In its view, the reforms adopted in Poland in recent months are so far-reaching that no one prosecuted before these courts would be guaranteed the right to an independent tribunal.
In his Opinion, the Advocate General recalls that the refusal to execute an EAW is “an exceptional response to exceptional circumstances” which nevertheless has its limits and does not go so far as to impose the automatic non-execution of any EAW issued by the judicial authority of the Member State experiencing deficiencies affecting judicial independence.
According to Mr Campos Sánchez-Bordona, automatically refusing the execution of all EAWs would amount to simply ceasing to apply the Framework Decision on EAWs. Moreover, such a refusal could be seen as a disavowal of the professional practice of all Polish judges who try to use the mechanisms of judicial cooperation provided for in the Framework Decision, he explained.
He therefore concluded that, in view of the aggravation of these systemic and generalised failings and in the absence of a formal finding by the European Council in accordance with the judgment in ‘Minister for Justice and Equality’, the District Court of Amsterdam must show increased vigilance in examining the circumstances of the EAW it is being asked to execute, but without being exempted from the obligation to carry out such an examination.
See the opinion: https://bit.ly/32DbhgG (Original version in French by Marion Fontana)