A judicial authority executing a European arrest warrant may refuse to surrender a wanted person only if there are substantial grounds for believing, in the particular circumstances of a case, that this person will not receive a fair trial, the Court of Justice of the European Union (CJEU) ruled on Tuesday 22 February (Joined Cases C-562&563/21). In its view, the existence of systemic failures in the judicial system of the country of the issuing authority is not sufficient to justify a refusal to surrender the person concerned.
In both cases, the Polish judiciary has issued European arrest warrants for Polish nationals wanted for the purpose of serving prison sentences who, while detained in the Netherlands, did not consent to their surrender to the Polish authorities.
The Amsterdam court had doubts as to whether it is obliged to execute the warrants, taking into account European case law (case C-216/18, see EUROPE 12070/1 - cases C-354 and 412/20, see EUROPE 12600/30). In particular, it notes the existence of systemic failures affecting the fundamental right to a fair trial guaranteed by the EU Charter of Fundamental Rights, notably because Polish judges are appointed by the National Council of the Judiciary, which is no longer independent from political power.
Relying on the opinion of the Advocate General (see EUROPE 12856/23), the Court clarifies the two-step examination - (1) the existence of a real risk of a breach of the right to a fair trial and (2) the materialisation of this risk in the circumstances of the case - that the executing authority must carry out in order to take its decision.
The Court finds that, where an executing judicial authority has evidence of the existence of systemic failings in the judiciary of the issuing Member State, in particular as regards the procedure for appointing members of that judiciary, it may refuse to surrender a person subject to a European arrest warrant only if it finds that there are serious and proven grounds for believing that the fundamental right of that person to a fair trial by an independent and impartial tribunal, as previously established by law, is breached or is likely to be breached in the event of surrender.
The right to be tried by a tribunal established by law includes the process of appointing judges. Thus, at the first stage of its examination, the executing authority must make an overall assessment based on any objective, reliable, accurate and up-to-date information concerning the functioning of the justice system in the issuing country and, in particular, the general framework for the appointment of judges.
Objective elements are the information contained in: - the so-called ‘Article 7’ procedure on the respect of the Rule of law in Poland; - the resolution of the Polish Supreme Court; - the relevant case law of the CJEU and the European Court of Human Rights.
On the other hand, the Court stated, the fact that the National Council of the Judiciary, which is involved in the process of appointing judges, is composed mainly of members representing or chosen by the Polish legislature or executive, does not in itself justify a refusal to surrender.
At the second stage of the review, the subject of a European arrest warrant will have to provide concrete evidence that the systemic failures of the judicial system have had a concrete impact on the handling of their criminal case or are likely to have such an impact in the event of surrender. These elements may be supplemented by information provided by the issuing judicial authority.
The requested person shall provide information, in particular on the procedure for the appointment of the judges concerned and their possible delegation, which would lead to the finding that the composition of the tribunal is such as to affect their fundamental right to a fair trial. Furthermore, account must be taken of the fact that it may be possible, for the person concerned, to request the recusal of the members of the panel of judges for breach of their fundamental right to a fair trial. Finally, the executing judicial authority must take account of information relating to the personal situation of the person concerned, the nature of the offence committed, the factual context in which the arrest warrant is issued or any other circumstance relevant to the assessment of the independence and impartiality of the panel of judges hearing the proceedings concerning that person.
See the judgment: https://aeur.eu/f/fs (Original version in French by Mathieu Bion)