Meeting in Warsaw on Friday 31 January, the Ministers of Justice of the Member States of the European Union began their informal meeting by discussing the relationship between mutual recognition and the protection of fundamental rights.
The principle of mutual recognition, enshrined in Articles 82 to 86 of the TFEU, is the cornerstone of judicial cooperation in criminal matters. It is based on mutual trust between Member States: each guarantees equivalent protection of fundamental rights and an independent judiciary.
However, according to the working document of the Polish Presidency of the EU Council, since the Aranyosi and Căldăraru judgments (2016) and L.M. (2018), which introduced checks on conditions of detention and judicial independence, this trust is sometimes called into question. These developments have led to an increase in refusals to execute European arrest warrants.
Speaking to the press, Poland’s Minister of Justice, Adam Bodnar, relayed the European Commission’s figures, pointing out that 586 cases had been postponed or prolonged because of these problems.
If Poland has put this subject on the agenda, it is not by chance, as a source close to the matter has suggested.
Its judicial independence has been repeatedly questioned by the EU, and several of its European arrest warrants have been rejected by other Member States due to the controversial reforms of the ‘Law and Justice’ party (PiS), in power between 2005-2007 and 2015-2023.
The return of a pro-European government just over a year ago coincides with Poland’s desire both to strengthen ties with the Member States and to build greater confidence in its judicial system.
“The European Union is not only based on financial issues, but also on values. An independent judiciary is essential to its future”, stressed Gerardus Van Ballegooij, Director of European and International Affairs at the Dutch Ministry of Justice.
Furthermore, as to whether the States most implicated - such as Hungary - feared that an instrumentalisation of fundamental rights would be used to block judicial cooperation for political ends, our sources told us that there was no strong consensus on the subject, with the majority of States preferring to preserve the current balance between cooperation and democratic control.
Adam Bodnar pointed out that, for the Member States, it is above all a question of implementation. However, he reiterated the importance of better understanding the judicial systems of each Member State and of working on the principles of judicial independence and respect for fundamental rights.
No State is questioning the Rule of law, but the question remains of how far to go in controlling it without undermining judicial cooperation. For the time being, the priority seems to be to improve the existing mechanisms rather than change the existing framework. Far from being alarmed, the States believe that a balance which they consider to be functional must be maintained.
The discussion focused on a number of avenues: - strengthen exchanges between Member States via Eurojust; - improve the transparency of judicial decisions to dispel doubts about the independence of national courts; - accelerate procedures, encourage digitalisation and improve operational efficiency. (Original version in French by Nithya Paquiry)