Lucas Pinelli has recently worked as research assistant at the Centre for European law of the ULB. He previously graduated with a Master of Law from the Université libre de Bruxelles. He regularly comments on issues of European criminal law, personal data protection and the law of new technologies.

The respect for the rule of law constitutes a fundamental value of the European Union, and frequent discussions address the consequences of the rule of law backsliding in some Member States. Whereas the attention has been recently focussed on the adoption of the new multi-annual framework, the EU Recovery Plan, and the introduction of a rule-of-law conditionality in the access to European funds, the impact of the rule of law crisis expands across various fields of European integration, including judicial cooperation in criminal matters.

In a much-awaited decision, the Court of justice of the EU (CJEU) was called to decide whether systemic or generalised deficiencies concerning judicial independence – and their increase – in Poland could lead to a suspension of all European Arrest Warrants (EAWs) issued by Polish judicial authorities. In its Grand Chamber judgment of 17 December 2020, the Court ruled that the existence of such deficiencies does not, in itself, justify denying execution of any EAWs. This judgement building on previous CJEU’s case-law seeking a fair balance between fight against impunity and the protection of fundamental rights deserves a thorough analysis.

Persisting and increasing concerns over independence of Justice in Poland

Concerns over independence of judges in Poland are not new and have already been the object of judgements of the CJEU, recognising that several provisions of the national law applicable to the judiciary violates key principles of EU law. These concerns increased considerably after the so-called “Muzzle law” entered into force on 14 February 2020. Particularly, this law allows, inter alia, for the content of judicial decisions to be qualified as a disciplinary offence. There is thus genuine concern that this new disciplinary regime could be used as a system of political control over the content of judicial decisions. Such concern is notably supported by the fact that a Polish judge is currently facing criminal charges because of the content of a sentence he rendered in 1982. Alongside, the replacement of more than 100 presidents and vice-presidents of courts by the Minister for Justice between 2017 and 2018 raised further concerns. Those concerns remain vivid until today, and sustained by the limited action of the EU institutions. Despite another infringement proceeding addressing the violation of EU law by the Muzzle Law, the European Commission failed to demonstrate any pro-activeness in ensuring its repeal. Similarly, the Council failed to deliver any progress in the Article 7 TEU procedure initiated against Poland.

Such deficiencies in the protection of the independence of justice have already had consequences for the system of the European Arrest Warrant. These derive from the LM case, also known as the Celmer case, where the Court was asked whether such deficiencies may justify the non-execution of EAWs issued by Polish judicial authorities. In its judgement of 25 July 2018, the CJEU pointed out that the independence of the judiciary is part of the essence of the right to a fair trial and the rule of law enshrined in Article 47 of the Charter and Article 19 TEU. The Court then proposed a two-pronged test to be performed.  The executing judicial authority must first assess the existence of systemic or generalised deficiencies in the independence of justice in the issuing Member State. Second, it must assess whether those deficiencies entail for the person subject to the EAW a real and individual risk of violation of his/her right to a fair trial.

Following this judgement, national courts performed such test, yet failing to find such an individual risk. However, for the first time in 2020, a German court, the High Regional Court of Karlsruhe, suspended the execution of a EAW issued by a Polish court on the ground that “the new disciplinary regime has repercussions on the entire judiciary, including on judges at the competent criminal courts of first instance”. The same court issued in November 2020 a second similar decision.

The issues at stake in the request made to the Court

The precise questions discussed here arise from a request for two references for preliminary ruling made by the International Legal Assistance Chamber (IRK) of the Amsterdam District Court, the court responsible for executing EAWs in the Netherlands. Faced with two EAWs issued by the Poznan and Sieradz regional courts, the IRK sought clarification about the Court’s ruling in the LM case, and inquired whether systemic or generalised deficiencies in the issuing Member State may justify denying the status of ‘issuing judicial authority’ to the courts of that State, without examining the individual risks for the persons subject to the EAWs. In essence, if followed, such reasoning would amount to suspend the execution of all EAWs issued by Polish authorities. These requests, extremely sensitive, benefitted from the urgent preliminary procedure, while the Polish Public Prosecutor sent late October an order to the prosecutors to block European Arrest Warrants issued by the Netherlands.

Summary of the judgment of 17 December 2020

The judgement rendered by the Court’s Grand Chamber refuses to follow the interpretation proposed by the Dutch court and instead highlights the importance of the individual assessment to maintain a balance between the fight against impunity and the protection of individuals’ fundamental rights. Its reasoning can be divided in two main parts.

Generalised deficiencies between mutual trust and “exceptional circumstances”

First, the Court recalls its findings in Opinion 2/13 that the principles of mutual trust and mutual recognition – which imply Member States to consider all the other Member States to be complying with the fundamental rights recognised under EU law – can only be limited in “exceptional circumstances”. The Court also asserts that the existence of systemic or generalised deficiencies regarding the independence of the judiciary does not necessarily affect every decision that the courts of that Member State may be led to adopt in each particular case. Therefore, denying the status of ‘issuing judicial authority’ to all courts in a Member State because of such deficiencies would go beyond those “exceptional circumstances”.

For Luxembourg judges, an interpretation to the contrary would amount to prevent the courts of that Member State to be regarded as a “court or tribunal” for the purposes of the application of EU law in general – meaning, inter alia, that they would no longer be able to submit references for preliminary rulings.

Non-execution of EAWs and the risk of impunity

Second, the CJEU refers back to the two-pronged risk assessment test developed in its previous LM judgement. As described above, the executing authority must, first, assess the existence of systemic or generalised deficiencies relating to the independence of the judiciary in the issuing Member State, on the basis of objective, reliable, specific and properly updated information. Then, that same authority must determine, specifically and precisely, whether, having regard to the circumstances of the particular case, there are substantial grounds to believe that the person subject to the EAW, if surrendered, would face a possible violation of his/her right to a fair trial.

According to the referring court, the risk assessment test could be reduced to its first part, and the mere constatation of systemic deficiencies would be sufficient to suspend the surrender of the persons subject to the EAWs. However, as pointed out by the Court, to rule out the second step of the risk assessment would, de facto, amount to suspending the implementation of the Framework Decision on the European Arrest Warrant (FD EAW) towards Poland. This possibility is envisaged in the text, but according to its recital 10, such suspension is only possible in the event that a serious and persistent breach is identified pursuant to the procedure laid down in Article 7 TEU. Whereas a procedure under Article 7 TEU has been initiated against Poland, it has not yet led to the adoption of any measures foreseen under that article.

At this stage, and in absence of such measures, the Court refers it back to the executing authority to implement the risk assessment test in full and determine whether the person sought would face a real risk of breach of his/her right to a fair trial. This requires the executing authority to examine to what extent the systemic or generalised deficiencies have concretely affected the independence of the court which imposed the custodial sentence or detention order underlying the EAW. Such examination could take in account for instance the situation of the person, the nature of the offence and the factual context (such as statements by the public authorities aimed at interfering with the conduction of the case).

Most importantly, following AG Campos Sanchez-Bordona’s Opinion, the Court stressed that the objective of combatting impunity underlying the EAW precludes the interpretation that the existence of systemic or generalised deficiencies – or their increase – regarding the independence of the judiciary in a Member State would be sufficient, in itself, to justify a refusal to execute an EAW.

The needed balance between Freedom, Security and Justice

The judgement constitutes a recent illustration of the difficult balance between the effectiveness of judicial cooperation in criminal matters and the protection of fundamental rights. The reasoning of the CJEU, both in the LM case and in its recent judgment, has been criticised. Some authors have for instance argued that the independence of the judiciary is a “key element of the State’s system”, and thus a broader notion than an individual’s fundamental right, whereas other considered that the LM test is unworkable to protect the rule of law. Yet the Court does not bulge from its approach requiring establishing the existence of an individualised risk assessment before eventually denying surrender, and thus stresses how important the second part of the LM test is to that end.

Whereas increasing systemic deficiencies over the independence of the judiciary in Poland are detrimental to the protection of individuals’ rights and to the principle of mutual trust among Member States, an indiscriminate suspension of the execution of all EAWs issued by Polish authorities would likewise have detrimental effects for the Area of Freedom, Security and Justice. Refusing surrender may entail the requested person being released and criminal offences going unpunished, which may prejudice the protection of victims and their right to remedies. While this line of reasoning was implicitly supported in the LM case, the Court makes now clear the link between the individual risk assessment and the objective of combatting impunity.

The importance of such balance finds echoes in the European Court of Human Rights (ECtHR) case Romeo Castano v. Belgium. A Belgian court refused to execute an EAW issued by Spain, on the ground that if surrendered, the requested person, a person convicted for murder, would face a risk of inhuman or degrading treatments in prison. Seized by the victim’s children, the ECtHR condemned Belgium for failing to rely upon a sufficiently strong factual basis to conclude that the execution of the EAW would entail a concrete and individual risk of violation of the requested person’s rights. Such finding was supported by the potential impact of a refusal to surrender on the rights of victims, and the importance of balancing the duty to cooperate in effective criminal investigations with other rights triggered in criminal proceedings.   

In its judgment of 17 December 2020, the Court fully consider the consequences that an indiscriminate non-execution of EAWs could have on third-party rights. Moreover, the existence of EU instruments on the transfer of proceedings and prisoners, or the existence of concurring jurisdiction in a given case may not suffice to ensure that criminal proceedings and criminal sentences are conducted and enforced, thus giving rise to new potential violations of fundamental rights. Therefore, the approach of the Court, however imperfect it is, is necessary to ensure a fair balance between competing rights, which is essential in a Union based on the rule of law.