Poland arrest warrant case highlights broader issues

The EU Court of Justice (CJEU) ruled Ireland was allowed to take into account Polish judicial independence before extraditing suspects.Last week, the EU Court of Justice (CJEU), took a significant step towards protecting against human rights violations in the operation of the European Arrest Warrant.

The ruling comes in response to an Irish Court refusing extradition to Poland because of concerns that attacks on judicial independence in the country, which have been at the centre of the rule of law procedure triggered by the European Commission against Poland in January 2016.

The Polish government had sought the extradition of Arthur Celmer - a Polish national - from Ireland, for alleged drugs violations. Because independence of the judiciary is an essential component of the fundamental right to a fair trial, the Irish court said it could not presume that Poland would uphold Celmer’s right to a fair trial.The law governing the European Arrest Warrant does not explicitly permit a member state to refuse to extradite a person if there is a risk of a human rights violation. And practice had long been for most EU member states to turn a blind eye and surrender persons even if such a risk existed.

In 2016, the CJEU took a first step by ruling that a person could not be extradited if there was a risk that the person would be subject to torture, cruel, inhuman or degrading treatment, for example because of prison conditions. Last week’s judgment is a step further which places human rights at the heart of the European Arrest Warrant system. The CJEU affirmed the right of the Irish court to refuse to extradite if it finds a “real risk” to the person’s right to a fair trial because of attacks on judicial independence. And if the EU finds Poland in violation of their obligations to respect the rule of law, then extraditions under the European Arrest Warrant must cease altogether.

Until that time, national courts must apply the two-step test that the CJEU created in 2016 – first, assess whether systemic deficiencies in the requesting state threaten the right to a fair trial in general; and second, assess whether these deficiencies impact both the court overseeing the case, and the case itself. The CJEU took the opportunity to state that an independent judiciary is a core EU value, and that the judiciary must be protected against “external interventions or pressure liable to impair the independent judgment of its members and to influence their decisions”.

This represents a clear warning to the Polish government to cease its attacks on the judiciary – and takes a stance against a pervasive trend across the EU towards curbing the independence of the judiciary. But the implications of the ruling are broader even than this critical issue. In June Fair Trials launched a report showing the extent to which the European Arrest Warrant, the EU’s fast-track extradition system, is being abused by EU member states, putting at risk the lives and rights of ordinary people.

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