So often the recently repeated slogan “lawfulness” has experienced its dubious career in Poland since the start of purgatory in the ranks of sometimes well-deserved judges. Some Member States use this situation to generalise the denial of the legality of courts in Poland, which is revealed, among other things, by blocking the European Arrest Warrant (ENA). The Advocate General of the Court of Justice of the European Union, Campos Sánchez-Bordona, ruled that this was an act which did not comply with EU law.
The case of refusal to execute ENA to Poland concerns a judgment in the case of the Minister for Justice and Equality (C-216/18 PPU) 25 July 2018.
It was a result of changes in the Polish judiciary and stated that "the requested judicial authority must refrain from executing the European arrest warrant if it considers that a person could be exposed to the risk of breach of the fundamental right to an independent court and therefore the essential content of the fundamental right to a fair trial, due to irregularities likely to affect the independence of the judicial authority in the issuing Member State." Based on this judgment, the Amsterdam District Court refused to execute two European arrest warrants issued by two various Polish courts.
In Bordon's opinion, this was unlawful.
In the submitted 12 November 2020 the Opinion of the Advocate General recalled that judicial cooperation in criminal matters is based on the principles of mutual recognition and mutual trust between Member States.
"The refusal to implement ENA is an exceptional response that should correspond to exceptional circumstances requiring, due to its importance, restrictions on these principles," the opinion states.
– These ‘exceptional circumstances’ actually include the actual risk of breaching the fundamental right of the person to whom the transfer is requested being made, to a fair trial resulting from ‘systemic or general irregularities’ in the issuing Member State with regard to the independence of the courts.
However, Manuel Campos Sánchez Bordona stated that this exceptional reaction is subject to restrictions and that it must not lead to an obligation to automatically refuse to execute any ENA issued by the judicial authority of the Member State where systemic or general irregularities were found.
The Advocate General stressed that the refusal to implement ENA for reasons other than those referred to in the Framework Decision must entail a thorough two-step analysis required by the Minister for Justice and Equality.
According to the Advocate General, the refusal to execute all ENAs issued by the Member State concerned, except for the second stage of this two-fold investigation probably lead to impunity of many crimes and could violate the rights of victims of crime.
It could also be understood as disincentive of the work of all Polish judges who try to use the judicial cooperation mechanisms laid down in the Framework Decision."
The overall, as if ‘from the march’ of the ENA's refusal to implement could only be possible if the European Council finds a serious and permanent breach by the issuing Member State of the rules laid down in Article 2 TEU on which the Union is based. For the record, this article describes the fundamental human rights of healthy democracy.
It states that "The Union is based on the values of respect for the dignity of the human person, freedom, democracy, equality, the rule of law, as well as respect for human rights, including the rights of persons belonging to minorities.
These values are common to Member States in a society based on pluralism, non-discrimination, tolerance, justice, solidarity and equality between men and women."