The Court of Justice of the European Union (CJEU) did not determine whether rule of law is breached in Poland
The judgment issued on 25 July following a request for a preliminary ruling from an Irish court in case C-216/18 PPU L.M. does not essentially differ from the opinion issued by the Advocate General (see article). The CJEU stated specifically the circumstances in which the executing authority can find an exception to the principle of mutual recognition, but placed the final decision in the hands of the national court executing the European arrest warrant.
CJEU judgment of 25 July 2018 in case C-216/18 PPU
To reiterate, LM is a Polish national and is sought under three European arrest warrants issued by Polish courts for dealing in narcotics. He was arrested in Ireland and refused consent to surrender to Polish law enforcement authorities on the grounds that due to judicial reform in Poland he would not be guaranteed a fair trial.
Given these circumstances, the Irish court submitted a request for a preliminary ruling to the European Court of Justice, concerning the circumstances in which the executing judicial authority can refrain from executing the warrant due to a risk of breach of the fundamental right of the subject to a fair trial in an independent court. The referral was linked specifically to information given in the proposal under Art. 7(1) of the Treaty on European Union from the European Commission to the Council concerning serious breach of the rule of law by Poland.
Refusal to execute a European arrest warrant only in special cases
In the judgment, the CJEU stressed that refusal to execute a European arrest warrant is an exception to the principle of mutual recognition of judgments, and a “cornerstone” of judicial cooperation between EU states. If there is a risk of breach of the fundamental right of a person sought under a European arrest warrant to independent tribunal, and thus to a fair trial, the executing judicial authority may refrain from executing the warrant by way of an exception.
Real risk of breach of right to a fair trial (I step of assessment)
When such a situation arises, the executing judicial authority must, as a first step, assess whether there is a real risk of breach of the fundamental right to a fair trial. This assessment should be based on objective, reliable, specific and properly updated information, while the CJEU considered that information in a proposal from the Commission to the Council under Art. 7(1) of the Treaty on European Union concerning grave breach by Poland of the rule of law is particularly relevant for the purpose of that assessment.
The European Court of Justice stated that there are two aspects to the right to independent tribunal. The first is that the judicial authority functions autonomously without being subject to any hierarchical constraint or subordinated to any other body and without taking orders or instructions from any source whatsoever, thus being protected against external interventions or pressure. There must be certain guarantees, such as protection against removal from office for the adjudicating persons and remuneration appropriate for the functions they perform.
The second is that the judicial authority must be impartial and objective, and cannot have any interest in the ruling reached in the case apart from the strict application of the law. To guarantee independence of a judicial authority, the CJEU requires specifically that dismissal of members of the authority be based on explicit laws and that the disciplinary system for members comprise guarantees that prevent any risk of political control over the content of judicial decisions.
Risk of breach of the subject’s right to a fair trial (II step of assessment)
If the executing authority finds that there is a real risk of breach of the right to a fair trial in the issuing country, its next step must be to assess whether in the case in point there are substantial and established grounds for believing that the requested person will run that risk if surrendered. In particular, the assessment must also take into consideration the individual’s personal situation, the nature of the offence for which the person is being prosecuted, and the factual context being the basis for the European arrest warrant.
The executing judicial authority must also request from the issuing authority any supplementary information necessary to assess whether there is a risk of breach of the right to a fair trial.
If upon conducting the assessment the executing authority finds that there is a real risk of breach of the subject’s right to independent tribunal and thus breach of the right to a fair trial, in the view of the European Court of Justice the executing authority is required to refrain from executing the European arrest warrant.
Implications of the judgment
The European Court of Justice did not determine whether rule of law is breached in Poland. In its ruling, the European Court of Justice defined for a national court the principles for assessing whether there is a risk of breach of the right to a fair trial. In case C-216/18 PPU L.M. the European Court of Justice stated specific circumstances in which the executing authority can apply an exception to the principle of mutual recognition.
The European Court of Justice placed the final decision in the hands of the national court executing the warrant.
Agnieszka Kraińska, legal adviser, EU law practice, Wardyński & Partners
