A doubt about the independence of the judiciary in Poland is not sufficient in itself to demonstrate the existence of a real risk of a breach of the fundamental rights of a person who is the subject of a request for execution of a European arrest warrant, said the Advocate General of the Court of Justice of the European Union, Athanasios Rantos, in his Opinion delivered on Thursday 16 December (Joined Cases C-562&563/21).
However, according to the Advocate General, the recent judgment of the Polish Constitutional Tribunal could, on a case-by-case basis, constitute an exceptional circumstance justifying the refusal to execute a European arrest warrant under the Framework Decision (2002/584/JHA) establishing it.
In both cases, the Polish judiciary issued European arrest warrants for Polish nationals wanted for the enforcement of prison sentences against them. Detained in the Netherlands, they refuse to be returned to their country of origin. The Amsterdam Court asks the Court of Justice whether, in view of the case law (Case C-216/18, see EUROPE 12070/1 - Cases C-354/20 and C-412/20, see EUROPE 12600/30), it is obliged not to execute the warrants.
Mr Rantos recalls that the executing judicial authorities may refuse to execute a European arrest warrant only on the grounds contained in the Framework Decision or in exceptional circumstances that would require limiting the principles of recognition and confidence in judicial cooperation in criminal matters between Member States. These exceptional circumstances include violations of the rights of the wanted person as enshrined in the EU Charter of Fundamental Rights.
To do this, a two-step procedure applies: (1) the executing judicial authority must assess the real risk of a breach of fundamental rights in light of the general situation in the issuing Member State; (2) it must ascertain, in concrete and precise terms, whether there is a real risk of a breach of a fundamental right of the wanted person.
The Amsterdam Court noted that the systemic failures stem from the irregular appointment of Polish judges, as this is potentially subject to executive control. According to Mr Rantos, in the second stage of the procedure, it should be verified whether the situation of the wanted persons is of particular interest to the Polish executive body, which exposes them to a risk of impartiality in the event of their being handed over to Polish justice.
According to the Advocate General, a doubt as to the participation of irregularly appointed Polish judges is not in itself sufficient to demonstrate the existence of a real risk of violation of the fundamental right of the person subject to a European arrest warrant. The wanted person must provide evidence and reasons why he or she believes that the involvement of irregularly appointed judges may adversely affect his or her own case in the circumstances of the case.
Such elements will normally be sufficient to lead the executing judicial authority to refuse to surrender the person, the Advocate General says, unless the judicial authority issuing the arrest warrant provides concrete assurances or commitments removing any doubt as to the treatment of the wanted person after his or her surrender to the justice of the issuing country.
Polish Constitutional Tribunal judgment. In this regard, the Advocate General comments on the recent judgment of the Polish Constitutional Tribunal challenging the primacy of Union law (Articles 1, 2, 4 and 19 TEU) (see EUROPE 12808/1).
In his view, this judgment calls into question the applicability of certain fundamental provisions of the TEU in Poland and the primary role of the Court in ensuring respect for the law in the interpretation and application of the Treaties, including the controversial issue of the independence of the judiciary, which is one of the fundamental features of the Rule of law.
The Advocate General considers that this judgment could play a role in analysing the concrete risks for surrendered persons of a violation of their right to a fair trial insofar as it prevents the absence of a means of appeal (recusal, appeal, etc.) to challenge the irregular appointment of judges involved in the proceedings to which they will be subject.
It is up to the Amsterdam Court to verify the existence of such circumstances, including the risk of executive interference with the competent courts, on the basis of the evidence provided by the wanted persons.
In his conclusions, Mr Rantos urges the Amsterdam Court to be very careful, because the implications of the Constitutional Tribunal’s judgment still need to be verified and the situation is still evolving. To state that this judgment now entails the impossibility of executing all European arrest warrants issued by Poland would lead to impunity for many criminal offences and would constitute a disavowal of the professional practice of Polish judges who strive to use the mechanisms of judicial cooperation provided for in Union law. This could in itself constitute a denial of justice and have serious consequences, going beyond the scope of Framework Decision 2002/584 and judicial cooperation in criminal matters.
See the conclusions (in French): https://bit.ly/3sfY3EA (Original version in French by Mathieu Bion)