The International Court of Justice of the Amsterdam District Court concluded that Polish courts are no longer independent and asked the @EUCourtPress about the consequences for the #EuropeanArrestWarrant regime.
Long🧵with my assessment ⬇️
Long🧵with my assessment ⬇️
1/ This is not the first time a national court has doubts as to whether suspects/convicts should be surrendered. For quite some time national courts denied surrender on various human rights grounds, in contravention of the black letter law of the Framework Decision on the #EAW.
2/ 🇬🇧 & 🇩🇪courts demanded assurances in relation to the detention conditions in certain issuing MSs already since 2013. They refused surrender in cases where they were not satisfied with the guarantees provided.
See footnote 29 in: journals.sagepub.com/doi/abs/10.117…
See footnote 29 in: journals.sagepub.com/doi/abs/10.117…
3/ AG Sharpston invited the #CourtofJustice in Radu to interpret the FD #EAW in a manner that would allow the executing court to refuse surrender where the #HumanRights of the person whose surrender is requested ... will be infringed. See para. 97. eur-lex.europa.eu/legal-content/…
4/ But the #CourtofJustice limited its approach to formulating an answer to the question whether the fact that the issuing authority did not hear the requested person before issuing the #EAW posed a violation of its fair trial rights, Radu, paras. 28–31. curia.europa.eu/juris/document…
5/ It was not until a 🇩🇪 court asked the CJEU about the consequences of heinous prison systemic violations of #HumanRights rights that the #CourtofJustice established its two tier test regarding the case-by-case suspension of surrenders. See Aranyosi, curia.europa.eu/juris/document…
6/ First the general #HumanRights situation in a MS needs to be checked. Once the real risk of #HumanRightsViolations was established, the risks for the individual have to be shown. If both prongs of the test are met, execution of the #EAW is postponed.
7/ The CJEU left a number of issues open in Aranyosi. What if we don’t have conclusive evidence as to the systemic violation of a #humanright? What if not an absolute rights is at stake? What if not a #HumanRight is at stake, but an element of the #RuleOfLaw ?
8/ The CJEU had the chance to answer these⬆️questions in the LM (aka Celmer) case when receiving an excellent preliminary reference from Justice Donnelly from the #IrishHighCourt. The question implied that surrenders to 🇵🇱 should be suspended due to lack of judicial independence.
9/ We pushed for a NEW TEST for #RuleOfLaw violations with Wouter van Ballegooij. verfassungsblog.de/the-ag-opinion…
10/ But both the AG and the CJEU insisted on the Aranyosi test in LM. They framed the legal issue in LM (independence of the judiciary) as a #HumanRights problem (the right to a fair trial), and applied the two-prong Aranyosi test.
11/ The CJEU in LM reserved the task of suspending mutual trust to the #EUCO (paras 71–72), and only if the sanctioning prong of #Article7 TEU were executed, which will never happen ➡️surrenders may only be suspended on a case-by-case basis (para 73). curia.europa.eu/juris/liste.js…
12/ The CJEU also ruled that the two-step test in Aranyosi needs to be followed by the executing judicial authority when making this decision. Both the general problem and the individual concern have to be shown.
13/ The AG even contended that you have to be a political enemy to have the second prong triggered. (AG Opinion, para. 113). The CJEU thankfully did not follow this interpretation, but some form of individual concern has to be proven.
14/ That ⬆️will never work – we warned the Luxembourg and national courts. See van Ballegooij, Bárd, verfassungsblog.de/the-cjeu-in-th… and Bárd, Morijn (@JMorijn) verfassungsblog.de/luxembourgs-un
15/ Albeit - unlike the AG Opinion – the CJEU does not talk about the extremely high ‘flagrant denial of justice’ test, several MS courts interpreted the CJEU test as such. See our book chapter with Wouter van Ballegooij, bloomsburyprofessional.com/uk/the-court-o…
16/ Flagrant denial of justice is an extremely high test and no suspect requested under the #EAW regime could satisfy it. They have all been surrendered to MSs with severe #RuleOfLaw problems.
17/ But even if the test is not interpreted as a flagrant denial of justice test, it gives rise to "Herculean hurdles" for suspects to prove the individual concern. verfassungsblog.de/the-cjeu-in-th… 
18/ It is also absurd to oblige the issuing court to engage in a dialogue with the requested court about its own independence. verfassungsblog.de/the-cjeu-in-th…
19/ Indeed, national courts including the Irish one in LM, surrendered individuals to Poland. Irish High Court: courts.ie/acc/alfresco/9…, Supreme Court of Ireland: courts.ie/acc/alfresco/0…
20/ My reading of Justice Donnelly’s reasoning in Celmer No. 5 ordering surrender: albeit there are systemic problems with regard to the judiciary in 🇵🇱, and our preference would be not to surrender, we adhere to EU law, apply the nonsensical CJEU test, and surrender Mr. Celmer.
21/ In light of continuous attacks on the 🇵🇱 judiciary and further decline in their independence, a Karlsruhe court in its judgment of 7 January 2019 lrbw.juris.de/cgi-bin/laende… made surrender to 🇵🇱 dependent on the German embassy being allowed to take part in the trial in Poland.
22/ Maximilian Steinbeis called this an elegant solution verfassungsblog.de/brothers-keepe…, which is true, but at the same time the German court technically reverted to traditional avenues of extradition in violation of the FD on the #EAW, because the LM test was inappropriate.
23/ On 17 February 2020, the same Oberlandesgericht Karlsruhe did not wait for an answer from 🇵🇱 judicial and other authorities – as prescribed by the CJEU in the LM case. Instead it suspended the case BEFORE the answers arrived. …rlandesgericht-karlsruhe.justiz-bw.de/pb/,Lde/609676…
24/ As @JMorijn and I predicted, several rulings from the Rechtbank Amsterdam from March 2020 paved the way for a set of questions in the form of a preliminary reference on how to (re)interpret the LM test. verfassungsblog.de/domestic-court…
25/ The Amsterdam court in very clear terms suggests the CJEU to allow them to suspend surrenders in case of systemic breaches of the rule of law and do away with the individual prong of the LM test.
26/ I agree with Amsterdam. The second prong of the LM test should never have been introduced. Once a systemic breach was established with regard to the #RuleOfLaw, mutual recognition based instruments should be suspended.
27/ Or at the very minimum, the onus should shift to the MS to show that the systemic problem will not affect the suspect. verfassungsblog.de/the-cjeu-in-th…
28/ Due to recent attacks on the Polish judiciary (for an excellent summary see @ProfPech: ) no judge is immune from potential pressure by the executive, and there is a risk in relation to every single judge that their independence will be jeopardized.
29/ Even if there are brave judges adhering to the standards of their discipline, the potentiality of the threat by the executive should be sufficient to suspend mutual trust between the MSs.
30/ + It is not just the independence of judges that matters, but they should also be seen as independent by the public. At the very minimum this semblance of independence of Polish judges has vanished.
31/ So as not to become complicit in the proliferation of #HumanRights breaches and so as not to expose suspects to legal systems not adhering to the #RuleofLaw, the @EUCourtPress should allow MSs' courts to suspend all mutual recognition based instruments including the #EAW.
32/ Looking beyond the Amsterdam reference, in the long run, preferably not the courts determine the suspension of mutual trust, but such a decision should should be made in the framework of a regular #RuleofLaw health check of all MSs, as I suggested: ceps.eu/wp-content/upl…
33/ Should neither political institutions, nor the CJEU allow for a leeway from mutual trust-based instruments vis-à-vis MSs with rogue governments, national courts will overwrite EU law in violation of the supremacy principle, so as to defend #HumanRights.
34/ The @EUCourtPress therefore will need to develop its existential jurisprudence now, and other EU institutions must use existing instruments once a #RuleOfLaw or a democracy-ruleoflaw-fundamental rights health check shows systemic issues with regard to Article 2 TEU values.
35/ On the EU's existential jurisprudence see Prof. Tomasz Koncewicz repozytorium.bg.ug.edu.pl/info/article/U…, verfassungsblog.de/existential-ju… or the great @ProfKochenov
and I researchgate.net/publication/33… (and the many @reconnectEU
deliverables and working papers) 🔚
and I researchgate.net/publication/33… (and the many @reconnectEU
deliverables and working papers) 🔚
