European Arrest Warrants: Netherlands’ ruling is opportunity for reform

Article by Fair Trials

Last week, the International Legal Assistance Chamber (IRK) of the Amsterdam District Court announced that it would temporarily stop extraditing people who are suspected or convicted of a crime to Poland because of concerns about the independence of the Polish judiciary. It’s the first time that a domestic court has issued a blanket ban on extraditions to another EU Member State due to rule of law concerns and it has significant implications for the use of European Arrest Warrants (EAWs) across the EU. In addition, it raises the need for there to be real meaning behind the concept of mutual trust between judicial authorities across the EU, on which judicial cooperation is based.

The Amsterdam Court also asked the Court of Justice of the EU (CJEU) for further guidance on this question through the preliminary reference procedure which enables national courts to raise questions to the CJEU on the interpretation of EU law. Back in July 2018, the CJEU ruled that EU Member States should refuse extradition under EAWs where there is a real risk that the defendant’s right to a fair trial would be violated because of ‘deficiencies’ in the independence of the judiciary in the state requesting extradition. This judgment concerned a request for the extradition of Artur Celmer, a suspect in criminal proceedings in Poland who was arrested in Ireland.

While the CJEU’s decision was welcome, the two-stage test it set for refusing an EAW had an extremely high threshold. Fair Trials raised concerns that in practice, defendants would be required to bring forward evidence about deficiencies in the general situation of rule of law in the requesting country as well as about specific risks that the person’s right to a fair trial would be violated. In the Celmer case, the Irish High Court did not consider that this threshold had been reached and ordered his extradition  to Poland  (which was confirmed by the Supreme Court in November last year).  Fair Trials believes that this threshold should be lowered and the burden of proof should be shifted to the State requesting extradition to show that an individual’s right to a fair trial will be guaranteed.

The Amsterdam Court’s announcement is an opportunity for the CJEU to revisit its approach and address concerns expressed by practitioners and civil society. There is also an opportunity for the EU to better protect its citizens from violations of their fundamental rights and mistreatment as a result of EAWs. The European Parliament recently highlighted the need to enhance compliance with EU values and fundamental rights. It is clear that mutual trust should not mean blind trust that fundamental rights are upheld across all EU member states. Each national court has a duty to ensure that fundamental rights are upheld in each and every case. Within the EU, we hope that the Amsterdam Court’s approach will lead the way to a meaningful commitment to the protection of fundamental rights, including the right to a fair trial, in judicial cooperation.