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CJEU to assess independence of Polish judiciary? Irish court seeks guidance from CJEU

Irish media report that a High Court has asked the Court of Justice of the European Union for a preliminary ruling on a question about the possibility of a refusal to extradite a person to Poland under the European Arrest Warrant (EAW) procedure. The case concerns a man suspected of being involved in a criminal organisation.

According to the Irish court, the recent legislative reforms pressed by the incumbent Polish government may limit the independence of the judiciary to such an extent that the suspect can be deprived of an ability to fully exercise his right to a fair trial.

Legal framework of European Arrest Warrant

The EAW procedure is regulated by Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States. This system is based on the principle of mutual recognition. According to the above principle, a warrant for the arrest and surrender of a designated person issued by a court of a Member State should be recognised and enforced in the other EU Member States. However, even the Recitals of the Decision provide that it “respects fundamental rights and observes the principles recognised by Article 6 of the Treaty on European Union and reflected in the Charter of Fundamental Rights of the European Union, in particular, Chapter VI thereof” [which describes the rights related to access to the justice system – HFHR’s note].

CJEU jurisprudence on EAW

The CJEU has already referred to cases similar to the one of the Polish national facing extradition in Ireland in its jurisprudence, e.g. in the case of Aranyosi and Căldăraru. In Aranyosi a German court requested a preliminary ruling on the question how to handle an extradition request in a situation where conditions at penitentiary facilities in a country issuing an EAW violate human rights. In this particular case, the problem was the overpopulation of Hungarian prisons, which was a phenomenon discussed in a number of ECtHR judgments.

The CJEU ruled that given the presence of the reliable, specific and properly updated evidence of systemic deficiencies in respect of detention conditions in the Member State issuing an EAW, the executing judicial authority should precisely determine whether there are substantial grounds to believe that an individual named in the EAW may be exposed to a real risk of inhuman or degrading treatment. To that end, the executing judicial authority should postpone its decision on the surrender of the person and request that supplementary information be provided by the issuing judicial authority within a specified time limit. Ultimately, if the existence of that risk cannot be discounted within a reasonable time, the executing judicial authority must decide whether the surrender procedure should be brought to an end.

Independence of courts in international law

So far, the CJEU has not expressed a view on the possibility of refusing the extradition of a person named in an EAW because of attacks against the independence of courts and judges in the issuing state.

However, on several occasions the Court has emphasised the significance of the right to access an independent court; this was done most recently in the judgment entered in the case of Associação Sindical dos Juízes Portugueses v. Tribunal de Contas. In this decision, the CJEU ruled that the principle of the effective judicial protection of individuals’ rights was a general principle of EU law. According to CJEU ruling in Associação, the existence of an effective judicial review procedure is an inherent characteristic of a state ruled by law. All Member States must ensure, the ruling went, that their judicial bodies meet certain requirements such as independence.


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