Extradition practitioners will be aware of the recent challenges advanced concerning the independence of the judiciary in Poland and its effect on proceedings under the EAW Framework Decision. The challenge is not only being pursued in England and Wales, but also in multiple jurisdictions across the European continent, including Germany and the Netherlands. Over the last few months, the Rechtbank Amsterdam, the Executing Judicial Authority in the Netherlands, has made two referrals for preliminary rulings to the Court of Justice of European Union (CJEU) under Art. 267 of the Treaty of the Functioning of the European Union. These are cases C-354/20 PPU and C-412/20 PPU, a summary of which has recently been translated into English. Given that they relate to the same subject matter, the cases have been joined. Yet it is instructive that C-354/20 PPU relates to an ‘accusation warrant’ whereas in C-412/20 PPU the requested person is sought for purposes of prosecution.
The questions referred in C-354/20 are as follows:
1. Do Framework Decision 2002/584/JHA, the second paragraph of Article 19(1) TEU and/or the second paragraph of Article 47 of the Charter indeed preclude the executing judicial authority from executing an EAW issued by a court where the national legislation of the issuing Member State has been amended after that EAW was issued such that the court no longer meets the requirements of effective or actual judicial protection since that legislation no longer guarantees the independence of that court?
2. Do Framework Decision 2002/584/JHA and the second paragraph of Article 47 of the Charter indeed preclude the executing judicial authority from executing an EAW when it has established that there is a real risk in the issuing Member State of breach of the fundamental right to an independent tribunal for any suspected person — and thus also for the requested person — irrespective of which courts of that Member State have jurisdiction over the proceedings to which the requested person will be subject and irrespective of the requested person’s personal situation, the nature of the offence for which he is being prosecuted and the factual context that forms the basis of the EAW, where that real risk is connected with the fact that the courts of the issuing Member State are no longer independent on account of systemic and generalised deficiencies?
3. Do Framework Decision 2002/584/JHA and the second paragraph of Article 47 of the Charter indeed preclude the executing judicial authority from executing an EAW when it has established that:
– there is a real risk in the issuing Member State of breach of the fundamental right to a fair trial for any suspected person, where that risk is connected with systemic and generalised deficiencies relating to the independence of that Member State’s judiciary,
– those systemic and generalised deficiencies are therefore not only liable to have negative consequences, but actually do have such consequences for the courts of that Member State with jurisdiction over the proceedings to which the requested person will be subject, and
– there are therefore serious and factual grounds to believe that the requested person runs 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,
even if, aside from those systemic and generalised deficiencies, the requested person has not expressed any specific concerns, and even if the requested person’s personal situation, the nature of the offences for which he is being prosecuted and the context that forms the basis of the EAW, aside from those systemic and generalised deficiencies, do not give rise to fears that the executive and/or legislature will exert concrete pressure on or influence his trial?
In C-412/20, the question is as follows:
Do Framework Decision 2002/584/JHA, the second subparagraph of Article 19(1) of the Treaty on European Union and/or the second paragraph of Article 47 of the Charter of Fundamental Rights of the European Union indeed preclude an executing judicial authority from executing an EAW issued by a court in the case where that court does not meet the requirements of effective judicial protection/actual judicial protection, and at the time of issuing the EAW already no longer met those requirements, because the legislation in the issuing Member State does not guarantee the independence of that court, and at the time of issuing the EAW already no longer guaranteed that independence?
In the present context, Art. 47 of the Charter of Fundamental Rights of the European Union 2000 (CFR) is akin to Art. 6 of the European Convention on Human Rights 1950 (ECHR). It prescribes that “Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law”. Both referrals make reference to the second subparagraph of Art. 19(1) of the Treaty on European Union (TEU) which requires Member States to provide remedies to ensure sufficient legal protection in the fields covering European Union law. In the context of the Framework Decision, Art. 1(3) requires issuing and executing judicial authorities to respect fundamental rights and fundamental legal principles, as prescribed in Art. 6 TEU, which includes those enshrined in ECHR and the CFR. Accordingly, even though Poland is bound by the CFR and a Contracting Party to the ECHR, an executing judicial authority in another Member State must be satisfied that an order for a requested person’s surrender would not lead to a violation of Art. 47 CFR/ Art. 6 ECHR.
The Grand Chamber of the CJEU heard the co-joined cases on 12th October 2020. The CJEU Registry has confirmed that the Advocate General will read his opinion on 12th November 2020. It is believed that the Grand Chamber’s judgment will be promulgated shortly thereafter. Proceedings have been rapid since each requested person is held in detention. Accordingly, the CJEU has accepted the application for an urgent procedure under Art. 107 of the Rules of Procedure.
The Luxembourg Context
In the context of EAW proceedings involving surrender to Poland under the Framework Decision, the most recent CJEU authority on point is LM (C-216/18 PPU). In LM, the High Court of the Republic of Ireland sought guidance as to whether recent changes to the structure of the Polish judiciary could, in general terms, lead to a breach of Art. 6 ECHR and thus allow it to refuse surrender. The CJEU found that it did not but gave guidance on the approach where specific and precise evidence has been raised in relation to an individual case:
[The Framework Decision] must be interpreted as meaning that, where the executing judicial authority, called upon to decide whether a person in respect of whom a European arrest warrant has been issued for the purposes of conducting a criminal prosecution is to be surrendered, has material, such as that set out in a reasoned proposal of the European Commission adopted pursuant to Article 7(1) TEU, indicating that there is a real risk of breach of the fundamental right to a fair trial guaranteed by the second paragraph of Article 47 of the Charter of Fundamental Rights of the European Union, on account of systemic or generalised deficiencies so far as concerns the independence of the issuing Member State’s judiciary, that authority must determine, specifically and precisely, 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 that form the basis of the European arrest warrant, and in the light of the information provided by the issuing Member State pursuant to Article 15(2) of the Framework Decision 2002/584, as amended, there are substantial grounds for believing that that person will run such a risk if he is surrendered to that State .
The English and Welsh Context
Separate but parallel to proceedings in Luxembourg, the High Court of England and Wales is seized of two cases where similar points of law are raised. Presently, the guidance given by Lord Chief Justice in Lis, Lange and Chimielewski v. Poland (No. 1)  EWHC 2848 (Admin) continues to bind domestic courts. In Lis (No. 1), the High Court adopted the Grand Chamber’s decision in LM, albeit giving it a slight gloss:
[…] As matters stand at present, in our judgment there exists no general basis to decline extradition to Poland. However, by reason of the matters contained in the Commission’s Reasoned Proposal and in the other material to which we have referred, there is sufficient concern about the independence of the Polish judiciary to mean that these applicants and others in a similar position should have the opportunity to advance reasons why they might have an exceptional case requiring individual “specific and precise assessment” to see whether there are substantial grounds for believing they individually might run a real risk of a breach of their fundamental rights to a fair trial. We make it clear, following the approach of the Grand Chamber of the Luxembourg Court, that exceptional circumstances must be demonstrated. We indicate, on the basis of the limited material available to us, that these cases would appear unlikely to fulfil that test and that those sought to be extradited for ordinary criminal offences, with no political or other sensitive content, would seem unlikely to be able to establish the necessary risk .
On 3rd June 2020, Lewis J (as he then was) granted permission to appeal in the case of Chlabicz v. Regional Court in Bialystok, Poland (CO/4976/2019). The appellant in Chlabicz is sought for purposes of prosecution. Two days later, in the case of Wozniak v. District Court in Gniezno, Poland (CO/4299/2019), Fordham J granted permission to appeal in a case where the appellant is sought for executing a custodial sentence. A hearing in both cases is listed before the Divisional Court at the beginning of December. It seems likely that the Grand Chamber’s decision in the conjoined cases of C-354/20 PPU and C-412/20 PPU will be handed down before these cases are decided.
The mere fact that an executing judicial authority has referred questions to the CJEU concerning matters presently challenged before the High Court will not materially affect matters in England for the time being. At present, except where a requested person calls specific expert evidence in relation to the risk arising in his or her particular case, extradition judges will take note that a requested person raises a challenge rooted in the independence of the Polish judiciary, but will (in the absence of other bars/reasons for refusal) order extradition nevertheless. This allows the point to be pursued before, and evidence placed on the record for purposes of litigation, in the High Court where such proceedings are (routinely) stayed behind Chlabicz and Wozniak. Should the Grand Chamber materially alter the considerations arising from LM (for instance, by finding that the Polish judiciary as a whole can no longer be considered independent, thereby occasioning a generalised risk) then practitioners will certainly consider altering their approach at first instance. The time between delivery of the Advocate General’s opinion and the judgment is likely to be relatively swift, so this development, should it arise, is just around the corner.
The referral in C-412/20 PPU is of particular interest. It seems that another executing judicial authority considers that the Grand Chamber’s judgment in Criminal Proceedings against OG and PI may (C-508/18 and C-82/19 PPU) have materially altered (or at least refined) the concept of a competent judicial authority in EU law. The Rechtbank Amsterdam asks whether the independence criterion as set out at paras. 69-74 may afford an additional reason for non-execution of an EAW over and above those in Arts. 3 and 5 of the Framework Decision (note: that Art. 5(1) has been repealed). In domestic law, this is raised as a challenge under s. 2(2) of the Extradition Act 2003 since it is said that an English court cannot be satisfied so that it is sure that an EAW issued by a Polish court emanates from a “judicial authority of a category 1 territory”. However, how exactly the matter is framed in national law is a question resolved under the internal legal orders of each Member State.
One key difference between C-412/20 PPU and Wozniak is that the Appellant in the English case is arguing that a judicial authority must be a constant – i.e. both at the point of issue and execution of an EAW. The logic being that often the issuing judicial authority is called upon to furnish supplementary information in extradition proceedings and, in any event, remains responsible for supervision of a sentence of imprisonment and any consequent applications thereunder (e.g. for release on licence or for aggregation of sentence). However, the referring court in C-412/20 PPU does not go as far. It simply asks whether a judicial authority must be “independent” at the point of issue. This distinction may be problematic since it would require either the CJEU or a domestic court to determine “specifically and precisely” when judicial authorities in Poland, or a particular judicial authority, ceased to be independent and thus incompetent under EU law. This would occasion the types of enquiry that the Framework Decision is designed to avoid.
We will keep you inform of developments in Luxembourg and how they affect proceedings in England and Wales.
Author: Stefan Hyman, 9 Bedford Row