The International Legal Assistance Chamber (IRK) of the Amsterdam Court has refused to extradite a man to Poland for prosecution because of the risk that he might not receive a fair trial.
It is the first time that the two-step test, established by the Court of Justice of the European Union (CJEU), has been used successfully to refuse to surrender someone requested through a European Arrest Warrant. The Amsterdam Court’s decision is welcome and shows that some courts are prepared to uphold fundamental rights, including the right to a fair trial, over calls for mutual trust. Fair Trials believes that the rights of individuals should take precedence over judicial cooperation tools to fight crime. The case also highlights the need for further changes to the EAW mechanism.
EAW two-step test
The two-step test was created after the Irish High Court referred the case of Artur Celmer to the CJEU.
The first part of the test is to determine that there are generalised and structural deficiencies in the issuing country s legal system, which mean that the independence of the judiciary is no longer guaranteed. In the case of Poland, this has been long established.
However, the second part of the test has so far proven practically impossible to meet. The person must also show that they themselves are individually at risk of being treated unfairly. This is a predictive test, and the burden is on the individual concerned to make their case even though it can be very difficult to get hold of relevant information or legal assistance in the country that is requesting their extradition. In Celmer’s case, the Court ordered his extradition even though the first test was met, because the second wasn’t. This was despite political and media attention towards Celmer’s case that arguably put his right to a fair trial at risk.
The Amsterdam Court challenged this approach last year, by asking the CJEU court to abandon’the second step of the test in the light of further deterioration of the rule of law in Poland. Their main argument was that the second step is pointless if general and systemic deficiencies are so severe that it is safe to assume no one will in fact receive a fair trial. But the CJEU was not convinced, and maintained its two-step approach.
Last week, the Amsterdam Court applied the two-stage test, and concluded that in this case, there was enough evidence to show that there was a real risk that the requested person wouldn’t receive a fair trial if he was surrendered to Poland. There were a number of reasons for this, including Polish politicians and Polish media commenting on the case. The accused man was also named and mentioned in a memo from the national prosecutor to the public prosecutors. This memo stated that because of this case, prosecutors in Poland had been ordered to conduct a careful analysis of EAWs issued by the Dutch authorities. The Polish authorities had also suggested that all EAWs issued by the Netherlands to extradite people from Poland should be scrutinised because the Netherlands allows for euthanasia.
One of the lawyers who represented the suspect, Michiel de Bruijn (Lawyer with Houben De Bruijn), said:
This is a great result for our client, which shows how important it is for courts to carefully assess their decisions to surrender a person. The EAW and the intended speedy and easy surrender of a person is based on the assumption of trust. It assumes that the country which has asked for the surrender of a person is a country based on the rule of law. In the case of Poland and increasingly, Hungary that assumption of trust is no longer warranted. The CJEU has determined that regardless of the plethora of problems in Poland, the subject of the EAW still needs to prove that he or she specifically will run a real risk of a breach of the fundamental right to a fair trial. In the case of my client the court of Amsterdam carefully weighed all the evidence and determined that there is a real risk that a fair trial in Poland would not be possible, making a surrender to Poland impossible.
While a great result for our client, it must be noted that it is extremely difficult to meet the high bar set by the CJEU. The corrupting influence of the Polish government is apparent in general, but the acts of unjust and undue influence upon judges in specific cases will as a general rule not be out in the open; and those judges who are not the direct subject of undue influence, will still be exposed to the chilling effect intended by the Polish government. The statements of the Polish government both during and after the court proceedings as evidenced by the deluge of untruths, even after the decision of the court of Amsterdam have only exacerbated our fears that it is their intent to get rid of independent judges a term that in a country based on the rule of law would by a tautology (a needless repetition), as all judges ought to be independent.”
Mutual trust or fundamental rights?
The CJEU justified its complicated test on the basis of mutual trust between authorities across the EU. But mutual trust must be based on common values, including fundamental rights. Where it is well documented that a State is not protecting fundamental rights, as in the case of Poland where legal reforms are undermining judicial independence, we do not think the authorities should be expected to operate based on mutual trust. Mutual trust should not allow people to be surrendered and deported to a country where there is no guarantee that their fundamental right to a fair trial will be guaranteed.
The judicial reforms in Poland are, since 2017, subject to the so-called Article 7-procedure of the European Union according to which Poland is to be required to maintain the European values of the rule of law. However, the political process has not progressed, as it requires unanimity of EU Member States, and has reached a stalemate. In the meantime, people are continuing to be surrendered despite real risks their rig
Reforming the European Arrest Warrant mechanism
This latest case is further evidence that we need changes to the whole EAW mechanism to ensure that people s fundamental rights are being protected across the EU.
Last month, MEPs voted for changes to the EAW proposed in a report by the Committee on Civil Liberties, Justice and Home Affairs (LIBE). While the European Parliament s recognised the need to protect fundamental rights and promote procedural safeguards for EAWs, the proposals also extended the list of offences that can be used to issue a European Arrest Warrant.
At the time, we warned that new offences, including crimes against constitutional integrity of the Member States committed by using violence and offences involving a serious threat against public order could put people at risk of being detained and deported for political activism.
We are calling on the European Commission must now act to address gaps in safeguards and ensure that judicial control is not watered down.
