Comments do not die away after yesterday’s (25 July 2018) precedent judgement of the Court of Justice of the European Union regarding a citizen of Poland – A. Celmer (C-218/16). Contrary to common opinions, the Court did not determine that the rule of law and independence of the judicial authority was violated in Poland. But it opened the door for Member States to carry out such assessment and refuse, on its basis, the execution of European Arrest Warrants (EAW) issued by Poland.

How does EAW work?

The European Arrest Warrant is an instrument of co-operation between EU Member States providing for faster (than extradition) mutual surrender of wanted citizens of such states. Its operation is based on a mechanism of mutual recognition of court judgements. EAW is issued by a judicial authority of the requesting state and submitted directly to judicial authorities of the member state in whose territory the wanted person resides. The judicial authorities of that state take a decision whether the EAW should be executed and whether the wanted person should be surrendered. The mandatory and optional grounds for refusal to execute EAW are specified in Council Framework Decision (2002/584/JHA).

Yesterday’s judgement is not the first judgement in the history of ECJ in which ECJ spoke about the influence which an infringement of basic rights of citizens in the state issuing an EAW has upon the justification of a refusal to execute the same [1].

What happened in Ireland?

A Polish citizen, A. Celmer, is wanted under three European Arrest Warrants issued by Polish authorities, in connection with illegal trade in intoxicants. He was detained and placed before a court in Ireland, which was supposed to decide whether or not the issued arrest warrants should be executed. A. Celmer stated that, in view with recent reform of the judicial system in Poland, he may face a risk of an unfair trial in Poland and this may constitute the grounds for refusal to execute the EAW.

Court’s concerns

In view with the raised concerns, the Irish court decided to apply to ECJ with a request for a preliminary ruling. ECJ was supposed to determine whether it is sufficient for a refusal to execute an EAW if the judicial authority responsible for deciding upon the surrender of the wanted person, in the situation where, as a result of the surrender, the rights of such person to a fair trial may be violated, determines that in the state to which such citizen is to be surrendered there are actually irregularities which pose a risk to a fair trial. The Irish court wondered if, in this situation, the court should additionally determine that, taking into account the circumstances of a given matter, such an unfair trial would affect a specific person in whose matter the EAW has been issued. The court also asked what information and guarantees may be required from the judicial authority issuing the arrest warrant in order to carry out an appropriate evaluation of the situation and avoid a possible risk of exposing the surrendered person to an unfair trial.

The concerns of the Irish court were evoked, among others, in the context of changes and reforms of the Polish judicial system, in reaction whereto the European Commission called the EU Council to determine an obvious risk of a serious breach by Poland of the rule of law.

Response of ECJ

The Court stated that the existence of a real risk that the person in respect of whom an EAW has been issued will suffer a breach of his fundamental right, including the right to a fair trial, is capable of permitting the executing judicial authority to refrain from giving effect to the European Arrest Warrant. At the same time, the Court emphasized that “(…) maintaining the independence of judicial authorities is essential in order to ensure the effective judicial protection of individuals, including in the context of the European Arrest Warrant mechanism”.

Therefore, in the event that the judicial authority executing an EAW, has any concerns whether the execution thereof might expose the surrendered person to a breach of his fundamental rights, including the right to a fair trial, due to deficiencies occurring in the judicial system of a given state, it should carry out a two-stage test.

Firstly, the court must assess, based on objective, reliable, exact and duly-documented information, whether a real risk arises in the state issuing the arrest warrant that the fundamental rights will be breached in connection with the occurring deficiencies, including the lack of independence of the courts of that state. ECJ stated that the information contained in the aforementioned proposal addressed by the EC to the EU Council “is particularly relevant for the purposes of that assessment”.

At this point, ECJ also explained what aspects determine the meeting of the requirement of independence and impartiality of courts. It emphasized that an important requirement in this aspect is the existence of rules, “(…) particularly as regards the composition of courts and the appointment, length of service and grounds for abstention, rejection and dismissal of their members.”

Secondly, if the judicial authority executing the EAW concludes that there is a real risk of a breach of the right to a fair trial, it should proceed with the next stage of the assessment. This time – whether in the particular circumstances of the case, there are substantial grounds for believing that, following his surrender, the requested person will run that risk. In the opinion of ECJ, that specific assessment is also necessary where, as in the present instance, the issuing Member State has been the subject of a reasoned proposal of the Commission seeking a determination by the Council that there is a risk of a breach by that Member State of the rule of law.

What is next with the EAWs issued by Polish courts?

The judgement of ECJ gives the grounds to Member States to refuse to give effect to EAWs issued by Polish courts. Of course the situation is not such that the court may automatically use these grounds to refuse execution. However, if the person who is a subject of the EAW refers to those grounds (and we may imagine that this will be an argument which will be often used), each court will have to carry out the aforementioned two-stage test. However, it seems dangerous that the Court suggested that the procedure initiated by EC in a matter concerning a breach to the rule of law as a result of the judicial reform in Poland may constitute the grounds for such assessment by the courts of other Member States. In other words, it “hinted” in this way that in the case of taking decisions about giving effect to Polish EAWs, a particularly detailed analysis of the situation should be carried out. It may turn out to be of key importance what the Irish court which submitted the request for the preliminary ruling to the ECJ will do.

The judgement of the Court may prove to be a dangerous precedence which will paralyse execution of European Arrest warrants issued by Poland abroad. Taking into account the fact that Poland particularly often reaches for that instrument (possibly too often – we are among the leaders of the EU states in this respect), it may turn out that prosecution of Polish citizens abroad will become much more difficult.

[1] ECJ judgement of 5 April 2016 in combined matters of C-404/15 PPU and C-659/15 PPU – Aranyosi and Caldararu

The author of the article is Joanna Waśko, an attorney-at-law at GWW.