European arrest warrants issued by the Polish authorities may not be enforced if there is a real risk of a breach of the fundamental right to an independent tribunal and therefore to a fair trial, the EU Court of Justice ruled yesterday.
The court gave its decision in a reference from the Irish courts in the case of LM, a Polish national. LM was the subject of three European arrest warrants issued by Polish courts for the purpose of prosecuting him on drug trafficking charges. He did not consent to his surrender to the Polish authorities, on the ground that, on account of the reforms of the Polish system of justice, he ran a real risk of not receiving a fair trial in Poland.
The Polish reforms increase the power of the President in relation to appointment of the judiciary, and recently enforced the retirement of many senior judges by retrospectively reducing the retirement age. In response the EU Commission adopted a reasoned proposal inviting the Council to determine that there was "a clear risk of a serious breach by Poland of the rule of law".
In its judgment, the court first observes that refusal to execute a European arrest warrant is an exception to the underlying principle of mutual recognition, and that exception must accordingly be interpreted strictly.
It then holds that the existence of a real risk that the person in respect of whom a European arrest warrant has been issued will suffer a breach of his fundamental right to an independent tribunal and, therefore, of the essence of his fundamental right to a fair trial is capable of permitting the judicial authority in the requested state to refrain from giving effect to the warrant, in order to ensure the effective judicial protection of individuals.
Where the person named in the warrant pleads that there are systemic or generalised deficiencies which are liable to affect the independence of the judiciary in the issuing member state, the executing judicial authority "must, as a first step, assess, on the basis of material that is objective, reliable, specific and properly updated concerning the operation of the system of justice in the issuing member state..., whether there is a real risk, connected with a lack of independence of the courts of that member state on account of systemic or generalised deficiencies there, of the fundamental right to a fair trial being breached".
Information in a reasoned proposal such as that addressed by the Commission to the Council "is particularly relevant for the purposes of that assessment".
If that test is met, the executing court "must, as a second step, assess specifically and precisely whether, in the particular circumstances of the case, there are substantial grounds for believing that, following his surrender to the issuing member state, the requested person will run that risk" – even where there has been a reasoned proposal and the executing judicial authority considers that it possesses material showing that there are systemic deficiencies in the other state.
That involves examining to what extent the systemic deficiencies are liable to have an impact at the level of the courts with jurisdiction over the requested person’s case. If they are, the court must then assess whether, having regard to his personal situation, as well as to the nature of the offence for which he is being prosecuted and the factual context forming the basis of the European arrest warrant, there are "substantial grounds for believing that he will run a real risk of breach of his fundamental right to an independent tribunal and, therefore, of the essence of his fundamental right to a fair trial". Information should be requested from the issuing judicial authority to help the court assess whether there is such a risk.
The court concludes that if that process "does not lead the [executing court] to discount the existence of a real risk that the individual concerned will suffer in the issuing member state a breach of his fundamental right to an independent tribunal and, therefore, of the essence of his fundamental right to a fair trial, the executing judicial authority must refrain from giving effect to the European arrest warrant relating to him".
It observes that it would only be if the European Council were to adopt a decision determining under article 7(2) of the Treaty on European Union, that there is a serious and persistent breach in the issuing member state of the principles set out in article 2 of the Treaty, such as those inherent in the rule of law, and the Council were then to suspend Framework Decision 2002/584 in respect of that member state, that the executing judicial authority would be required to refuse automatically to execute any European arrest warrant issued by it, without having to carry out any specific assessment relating to the individual concerned.