By Małgorzata Szuleka

The butterfly effect

Recent cases of courts in other countries refusing to execute European Arrest Warrants issued by Polish courts demonstrate how powerful yet fragile judicial cooperation between the EU member states can be. This is a butterfly effect, when a single action taken by the Polish government can cause ripples leading to a huge legal storm throughout the European Union.

The Polish justice minister, Zbigniew Ziobro, and his colleagues often say that Poland, as a sovereign state, has every right to manage its judicial system as it wishes – in practice meaning without taking into consideration any international standards. That might have been true if Poland was an isolated island outside any international legal order. Yet, as a member of the EU, Poland’s system needs to meet certain criteria, such as guaranteeing everyone the right to a fair trial before an independent court.

The succession of changes in the judicial system implemented since 2015 has significantly undermined this right. As a result, these systemic shortcomings can be challenged both in the proceedings before national courts as well as other EU courts when, for example, implementing a European Arrest Warrant.

European Arrest Warrant

The European Arrest Warrant (EAW) is a simplified extradition procedure binding between the European Union member states. Once issued, an EAW requires another member state to arrest and transfer a suspected or sentenced person to the country where the warrant was issued. The EAW can be issued at all stages of the proceedings – either when the investigation or the trial is pending or at the moment when a person is already convicted but has not yet begun serving the sentence.

The application of the EAW relies on mutual recognition of the judiciary systems and mutual trust. In other words, when recognising the EAW, the court of another member state operates under the assumption that the decision was made by an independent and impartial court free of any political influence. This is why the EAW has been called the “cornerstone” of EU judicial cooperation in criminal matters.

Since the Polish legal system adopted the EAW provisions in 2005, Poland has been one of the countries with the highest number of EAWs issued every year. The vast majority of them were directed to the United Kingdom (until Brexit), Germany and the Netherlands.

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Although the number of EAWs issued by the Polish courts remain high, their effectiveness is relatively low. According to Helsinki Foundation for Human Rights research, only around 20% of the EAWs issued by Polish courts are executed in other member states.

Until 2018, the courts in other member states usually questioned the proportionality of these measures (the Polish courts used to issue warrants in all kinds of cases, including those that could be considered less serious, such as non-payment of single debts or shoplifting), as well as lack of sufficient procedures guaranteeing access to health care and in general the situation in Polish prison facilities. Since 2018, the courts in the EU have also started to take into consideration another factor, namely the influence of the government’s so-called judicial reforms on judges’ independence in Poland and how this impacts the right to a fair trial.

Poland’s so-called judicial reforms

In the last five years, the Polish governing majority has adopted more than 20 different pieces of legislation concerning courts and judges. The changes have significantly weakened the constitutional control offered by the Constitutional Tribunal and changed the structure of the Supreme Court.

Most importantly, they increased political control over the common courts and affected their work. The changes in appointment of members of the National Council of the Judiciary mean there are ongoing legal doubts regarding the legality of the decisions made by this body. As the Council’s responsibilities include nominating and promoting judges, the controversies also spread further, to the status of judges appointed by the Council in its current composition.

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Furthermore, the disciplinary regime against judges has also been changed. The justice minister now has powers to nominate both the judges of disciplinary courts and the disciplinary commissioners who press disciplinary charges against judges. Widening judges’ disciplinary liability and making this regime dependent on politicians will pose a serious threat to judges’ independence.

All these changes taken together beg the question whether the Polish judiciary system can guarantee everyone the right to a fair trial. This is not just a theoretical question discussed by legal and academic communities, but also a practical challenge that courts – and not only Polish ones – have to face.

The pioneering Irish court

The first court to take the outcomes of the judiciary changes in Poland into account was the Irish high court, when considering an EAW issued in the case of a Polish defendant who was wanted in Poland. The Irish judge, Aileen Donnelly, expressed concern that the changes to Poland’s judicial system had been “so immense” that they had caused “systematic damages” which undermined “mutual trust” between European courts. She refused to extradite the defendant and instead made a request for a preliminary ruling from the Court of Justice of the European Union (CJEU).

In July 2018, the CJEU issued a decision that was supposed to help national courts in deciding how to approach EAWs issued by courts from countries in which judicial independence may be under threat. The CJEU created a twofold test in which, first, the court must find there are systemic deficiencies and there is a real risk of inhuman and degrading treatment. Second, the court must conclude that the systemic breach will influence the specific individual case.

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The CJEU’s judgement was both welcomed as the court’s brave exploration of the uncharted waters of judicial cooperation within the EU and criticised for being impossible to implement in practice. Regardless of the voices of criticism, after the CJEU judgement it became clear that the implementation of EAWs will face yet another challenge.

Execution of Polish EAWs in other EU countries

Even though, as stated earlier, the courts may have signalled some issues concerning the proportionality of the EAW, still the status of the Polish courts and judges issuing the warrants remained unquestioned. The latter, however, changed with the rising awareness of the situation of the Polish judges among their European peers.

In the last two years, when executing EAWs from Poland, European courts have begun asking detailed follow-up questions to Polish courts regarding their independence, or even refusing to execute the EAW. For example, in February 2020 a German court refused to execute a Polish EAW, justifying its decision by pointing to the adoption of a law earlier this year that widened the disciplinary liability of judges and further exposed them to the disciplinary charges in the case of judgements not favourable to the governing majority.

More recently, a Dutch court suspended the execution of all EAWs issued by the Polish courts and directed a request for a preliminary ruling to the CJEU. The court asked the CJEU whether the concerns regarding the judicial independence in Poland may be a sole ground to refuse execution of the EAW issued by the Polish court. A potential positive answer from the CJEU may be another step towards limitation of the application of EAWs issued by Polish courts.

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Does this mean that Polish criminals have gained a chance for impunity and their best defence would be fleeing abroad to avoid trial in country? Not necessarily. Even though, in the light of the CJEU decision of 2018, the threats to the independence of the Polish judiciary are piling up, this still does not mean that all these threats would be manifested in one case and violate one’s right to a fair trial.

Still, it can be argued that the European courts will look more closely into the EAWs issued by Polish courts, and we can expect an increased number of refusals to execute the warrants. Furthermore, a similar trend could emerge in other types of cases, such as civil or family law cases. The fact that there are legal doubts concerning the status of judges appointed by the National Council of the Judiciary in its current composition combined with the policy of pressure on judges may lead to a situation in which judges in other member states question the Polish courts’ decisions, as there are doubts whether these decisions were issued by an independent authority.

Who is to blame?

There is no point in blaming the courts for this. Nor should we blame the defendants subjected to the EAWs – once accused, they have the right to use any kind of legal arguments that would improve their situation in trial.

It is the Polish Ministry of Justice who should be blamed. The European Commission, the European Parliament, the Council of Europe, civil society organisations and hundreds of lawyers warned the ministry that the changes they made would not improve the situation in the Polish judiciary system, but rather lead to weakening its effectiveness and undermining judicial cooperation within the EU. Yet the ministry chose not to listen, and now is the time to pay the price.

Main image credit: Grzegorz Żukowski/Flickr (under CC BY-NC 2.0)

Małgorzata Szuleka is a lawyer and researcher at the Helsinki Foundation for Human Rights, one of the leading Polish human rights organisations. Specialising in problems concerning rule of law, judiciary independence and civil society operational space, she is also a member of the Warsaw Bar Association.

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