European arrest warrant and determining whether rule of law is observed
On 28 June 2018 the advocate general at the European Court of Justice issued an opinion regarding a request for a preliminary ruling from an Irish court on whether the judicial authority executing a European arrest warrant against a citizen of a different EU member state is required to postpone execution of the warrant in order to determine whether there is a real risk of breach of the right to a fair trial in the issuing state due to deficiencies in the system of justice of the issuing state.
Opinion issued by the advocate general concerning a request from an Irish court for a preliminary ruling in case C-216/18 PPU L.M.
The request for a preliminary ruling was submitted in light of changes in the Polish judicial system which led the Commission to initiate the procedure on 20 December 2017 under Art. 7(1) of the TFEU due to a real risk of breach by Poland of the rule of law (more about monitoring of the rule of law can be found here).
Respect for European standards of human rights
In his opinion, the advocate general stated that mutual recognition of European arrest warrants presupposes that prosecutions will be conducted in the issuing member state in accordance with European human rights standards and before an independent and impartial judicial authority. If this requirement is not met there is no basis for executing a European arrest warrant.
In this context, the CJEU stated in 2016 in the combined cases C-404/15 PPU and C-569/15 PPU Aranyosi and Căldăraru, that if the subject of the European arrest warrant is at risk of inhuman or degrading treatment, execution must be postponed.
The advocate general also stated that a two-step analysis by the court executing the warrant was needed. Firstly, it should examine whether the deficiencies in the justice system mean that there is a real risk of breach of the right to a fair trial in the issuing state. Secondly, it should determine whether the subject of the European arrest warrant is exposed to that risk.
With regard to the first issue, the advocate general found that lack of independence of courts might in principle amount to a flagrant denial of justice, but that in the case in point the breach must be so serious that it destroys the fairness of the trial. The advocate general stated that it was for the Irish court to determine this matter based on objective, reliable, specific and properly updated information concerning deficiencies in the justice system in Poland as the issuing state. The Irish court may rely on the proposal made by the European Commission to initiate the procedure against Poland under Art. 7(1) of the TFEU, but the Irish court must request the necessary additional information from the Polish judicial authority issuing the warrant concerning legislative changes that took place subsequent to the date on which the documents being the basis for finding that there was a risk of breach of the right to a fair trial were produced.
With regard to the second issue, the subject of a European arrest warrant has to demonstrate to the Irish court that there are serious and substantial grounds for believing that in the issuing state there is a risk of flagrant breach of the right to a hearing before an independent and impartial court. The Irish court is also required to request from the issuing court all necessary information on the particular circumstances concerning the subject of the European arrest warrant or concerning the nature of the offence in respect of which they are being prosecuted or have been convicted.
Lack of independence of courts as an indication of flagrant breach of the right to a fair trial
The advocate general also cited Court of Justice of the European Union and the European Court of Human Rights case law on lack of independence of courts as an indication of flagrant breach of the right to a fair trial.
In this context the advocate general cited a ruling of February 2018 in case C-64/16 Associação Sindical dos Juízes Portugueses. In this judgment, the CJEU found that preserving independence of national courts is a fundamental issue, and that guaranteed independence is an integral element of adjudication. It also stated that the CJEU considered independence to be performance of duties in autonomous fashion without being subject to hierarchical restraint or subordinated to any other body, and without taking orders or instructions from any source. This notion also entails protection against interventions or pressure liable to impair independent adjudication and influence decisions. One of the guarantees that these conditions exist is protection against removal from office of the members of the body concerned.
In Al-Nashiri vs Poland (2014) and Al-Nashiri vs Romania (2018), the European Court of Human Rights found that there was a real risk of flagrant breach of the right to a fair trial, among other things due to the military commission seated within a military base in Guantánamo bay not being independent or impartial. For this reason, it could not be considered to be a court as defined in Art. 6(1) of the European Convention on Human Rights.
The advocate general confirmed that lack of independence and impartiality of a court can only be considered an indication of flagrant breach of the right to a fair trial in cases in which it is so serious that it destroys the fairness of the trial. Meanwhile, in Othman (Abu Qatada) vs the United Kingdom (2012), the European Court of Human Rights noted that there was a fundamental difference between admitting evidence obtained by means of torture, which was the subject matter of that case, and breach of Art. 6 of the European Convention on Human Rights due for example to the composition of the adjudicating panel.
Interestingly, the advocate general noted that the judgments in Al-Nashiri vs Poland and Al-Nashiri vs Romania (2018) are to date the only judgments in which the European Court of Human Rights found Art. 6 of the European Convention on Human Rights to have been breached, among other things due to lack of independent and impartial courts in the country of destination, with respect to special courts with jurisdiction in terrorism cases, solely comprising members of the armed forces.
The consequences of proceedings in the L.M. case with regard to use of a European arrest warrant against Poland
The advocate general also pointed out the difference between the current procedure against Poland under Art. 7 of the TFEU and the European arrest warrant proceedings against L.M. pending before the CJEU.
According to the advocate general, the matter under analysis in the former is breach of rule of law. If the Council found that such a risk existed, it could result in the framework decision on the European arrest warrant being suspended in relation to Poland.
Meanwhile, the proceedings before the CJEU concern examination of the risk of breach of the right to a fair trial. If such a breach is found (based on the two-step analysis described above) execution of the warrant can be stayed in the case in question, but the European arrest warrant will still apply in relation to Poland.
An opinion issued by the advocate general is not binding on the Court of Justice, but in most cases a CJEU judgment does not differ significantly from an opinion issued by the advocate general. The position of the advocate general, that each request concerning a European arrest warrant needs to reviewed on a case-by-case basis to ensure that right to a fair trial is observed, is a strong argument, and it is unlikely that the CJEU’s judgment in the case of L.M. would also cover the question of observance of the rule of law in Poland.
Agnieszka Kraińska, legal adviser, EU law practice, Wardyński & Partners
