European arrest warrant and judicial independence in Poland: where can mutual trust end? (Opinion of the AG in C-216/18 PPU L.M.)

By Sofia Mirandola

The case and questions referred

In these times when “strong headwinds” are blowing against the European culture of fundamental rights and the rule of law (see P. Pinto de Albuquerque), the principles of mutual recognition and mutual trust on which judicial cooperation in the EU is based have come under pressure. The CJEU and the ECtHR are increasingly called upon to address the phenomenon of “rule of law backsliding” and to strongly defend these common values.

The recent preliminary reference submitted by the High Court of Ireland in case C-216/18 L.M. fits into such trend. It concerns the possibility to refuse the execution of three European Arrest Warrants issued by Polish courts against an individual, L.M., on account of the potential violation of the right to a fair trial ensuing from the latest controversial reforms of the judiciary in Poland. According to the Commission’s reasoned proposal to activate for the first time in history the procedure of Art. 7 TEU, which recently found the endorsement of the European Parliament calling on the Council to take action swiftly, the said reforms resulted in a breach of the rule of law due to, essentially, a lack of sufficient guarantees of external independence of the judiciary at all levels. Even though the application of the Framework Decision on the EAW can be suspended only after a Council’s decision under Art. 7 (1) TEU has been adopted (Recital 10 of the Framework Decision on the EAW), it is nonetheless inevitable that such circumstances may – from the viewpoint of the person subject to an EAW issued by Poland – entail a serious risk of breach of the right to a fair trial. The CJEU now has thus the opportunity to clarify whether an alleged lack of judicial independence amounts to a breach of the right to a fair trial that calls for the refusal to execute an EAW, as an exception to the principle of mutual trust.

In the case at hand, indeed, L.M. opposed to the EAWs issued against him for the purpose of prosecuting him for several drug trafficking offences arguing that, on account of the recent reforms of the judicial system, he would run a real risk of a flagrant denial of justice in Poland in breach of his right to a fair trial under Article 6 ECHR. The High Court of Ireland, in view of the aforementioned European Commission’s reasoned proposal, considered it to be established that the reforms undertaken in Poland amount to a breach of the rule of law as the independence of the judiciary is no longer guaranteed. It thus asked to the CJEU whether, where a national court determines that the right to a fair trial is not ensured in the issuing Member State because the system of justice itself is no longer operating under the rule of law, it is necessary to follow the two-steps test developed in the case of Aranyosi and Caldararu (cases C-404/15 and 659/15 PPU) in order to assess the exposure of the individual to a risk of unfair trial and, if need be, refuse the execution of the EAWs. Under Irish legislation, indeed, the execution of an EAW is to be refused if the surrender would be incompatible with the State’s obligations under the ECHR (Section 37(1) of the European Arrest Warrant Act of 2003).


Since its Opinion 2/13, the CJEU has accepted that mutual trust, on which the EAW is based, is not blind: the presumption of equivalent protection of fundamental rights in all and each of the Member States is thus not conclusive, though, in view of the fundamental character of the principle, it can be rebutted and limited only in exceptional circumstances. The framing of limitations to mutual trust, and the ensuing power of the national authority to check compliance with fundamental rights by another Member State, is thus a particularly delicate matter: a balance must be struck between the effectiveness of judicial cooperation and the protection of fundamental rights. The EAW system is a fertile ground for such interpretation exercises since it is a field in which those two needs inevitably clash. While pursuing the objective of simplifying and accelerating judicial cooperation by exhaustively listing the grounds for non-execution, the EAW at the same time concerns a measure – the surrender of persons in the framework of criminal proceedings – that touches upon a great number of fundamental rights. While Articles 4 and 5 of the Framework Decision on the EAW do not explicitly refer to human rights violations as a ground for non-execution, a number of Member States (such as Ireland) have adopted an explicit ground for refusal in case of a fundamental right’s violation.

Over the last years, the CJEU has started to accept exceptions to the principle of mutual recognition on fundamental rights grounds even in the absence of explicit provisions in secondary law to that effect (see case C- 411/10 and C-493/10, N.S. and others). With respect to the EAW, this occurred for the first and only time so far in the above-mentioned case of Aranyosi and Calderaru. On that occasion, the CJEU found that the general obligation to respect fundamental rights under Article 1(3) of the Framework Decision must be interpreted in the sense that a real risk of exposure to inhuman or degrading treatment in violation of Article 4 of the Charter justifies the postponement of the execution of a EAW and, if that risk cannot be eliminated within a reasonable time, the possibility to end the surrender procedure. More precisely, it held that where the executing authority determines that

“there are substantial grounds to believe that the individual concerned by a European arrest warrant (…) will be exposed, because of the conditions for his detention in the issuing Member State, to a real risk of inhuman or degrading treatment, within the meaning of Article 4 of the Charter, in the event of his surrender to that Member State (…) it must postpone its decision on the surrender of the individual concerned until it obtains the supplementary information that allows it to discount the existence of such a risk” and, when that is not possible “within a reasonable time”, it “must decide whether the surrender procedure should be brought to an end” (§ 105).

In order to assess the existence of such risk, the CJEU developed a two-pronged test: the executing authority must assess 1) whether there is a real risk of inhuman or degrading treatment by virtue of the general conditions of detention in the issuing Member State, and then 2) whether the individual concerned will be exposed to that risk because of the conditions for his detention (§§ 91-92).

Building upon such case law, the present case advances for the first time the possibility to apply a similar limitation to the principle of mutual recognition in the EAW system to a real risk of violation of another fundamental right than Article 4 of the Charter, namely the right to a fair trial under Art. 47 of the Charter. It hence further raises the thorny question whether the different nature of the right at issue calls for an adaptation of the method developed so far by Aranyosi.

The issue whether a breach of the right to fair trial could justify a refusal to execute an EAW was raised already in Radu (case C-396/11), but it was not addressed by the CJEU, which decided the case on other grounds. It seems, however, that the solution could be found in Article 1(3) of the EAW Framework Decision which obliges Member States to respect fundamental rights in general, therefore not only the prohibition of torture and inhuman or degrading treatment but also the right to a fair trial. And with respect to such right, there is also consolidated case law of the ECtHR according to which Article 6 ECHR is breached if extradition is ordered where the individual would risk suffering a “flagrant denial of justice” in the requesting country (for the first time in Soering v the United Kingdom, § 113, and defined as “breach of the principles of fair trial which is so fundamental as to amount to a nullification, or destruction of the very essence of the right [to a fair trial]” in Ahorugeze v Sweden, § 115). What could be more open to question is whether the specific facts of the case involving a lack of a single fair trial guarantee – the external independence of the court – may amount to a flagrant denial of justice. Admittedly, the ECtHR has not yet dealt with a similar situation; to the contrary, in view of the specific circumstances of those cases, the lack of independence of the judges has been considered in extradition cases so far only as one among many elements that – as a whole – met said threshold (Husayn v Poland, and Al Nashiri v Romania).

Nonetheless, the core and crucial issue in this case is the second one, namely how is the executing judge supposed to assess such a risk of unfair trial? Is the test developed with specific regard to inhuman or degrading treatment in Aranyosi appropriate also for a risk to a fundamental right of a different nature, such as the right to a fair trial?

Opinion of the AG

All the above-mentioned issues have been addressed in the present Opinion. Advocate General Tanchev essentially argues for extending the application of the two-pronged test of Aranyosi also to cases of serious risks of the breach of the right to a fair trial in the issuing Member State arising from a lack of independence of the judiciary, in order to postpone the execution of the EAW on the basis of Art. 1(3) of the Framework Decision.

Although the issue was not raised by the referring court, the Advocate General preliminarily points out that also a real risk of a breach of a non-absolute right, such as the right to a fair trial enshrined in Article 47 of the Charter, can justify a postponement of the execution of a EAW as in Aranyosi. That follows both from the wording of Framework Decision, imposing respect of fundamental rights in general under Art. 1 (3), and from the above-mentioned case law of the ECHR (§§ 57-67).

However, in view of its non-absolute nature and given that limitations to the principle of mutual trust and mutual recognition are possible only in exceptional circumstances and are to be interpreted strictly, the Advocate General argues that not any violation of the right to a fair trial may have such an effect on the execution of a EAW. In accordance with the case law of the ECtHR, he submits that only a “real risk of breach of the essence of that right” (§ 77), amounting to a “flagrant denial of justice”, may be taken into consideration for such purpose (§ 72).

As to whether a lack of judicial independence can amount to a “flagrant denial of justice”, the Advocate General holds it “in principle” to be possible, however only where “the lack of independence and impartiality is so serious that it destroys the fairness of the trial” (§§ 90-93). He therefore suggests that not any kind of lack of independence would meet such requirement.

Coming thus to the core of the case, the Advocate General asserts the duty of the court of the executing State not to stop at the first general assessment on whether there is a real risk of flagrant denial of justice on account of the alleged lack of independence of the Polish judiciary, but also to proceed to an individual examination of the situation of the requested person (§ 104). In particular, it should verify whether the risk resulting from the deficiencies at systemic level also affects the specific case at issue or not. According to the Advocate General, the case law of the ECtHR both on expulsions under Article 3 ECHR and on extraditions under Article 6 ECHR also supports such conclusion (in particular, Ahorugeze v Sweden, and Yefimova v Russia). He argues that, even where confronted with a general problem of judicial independence, “there may be contexts where the capacity for courts to conduct a trial with the independence necessary to ensure respect for [the right to a fair trial] is preserved” (§ 108).

To perform the individual assessment, the court of the executing State should, in his view, take into account the specific circumstances of the case relating both to the type of offence at hand (e.g. if it is political in nature) and to the requested person itself (e.g. if he or she is a political opponent or member of a minority group), which make it more likely for the person concerned to be exposed to such risk (§ 113). As to the burden of proof, the Advocate General holds that it is for the requested person to demonstrate that there are substantial grounds to believe that there is a real risk that he will suffer a flagrant denial of justice. It is also added, at last, that before taking the decision to postpone the execution of the warrant, the executing authority, in the same vein as Aranyosi, has the obligation to request from the issuing authority all supplementary information concerning any subsequent changes in the legislation and the particular circumstances of the specific case (§ 128).

Remarks and comments

The Advocate General’s conclusion as to the applicability of the “flagrant denial of justice” principle also in the context of the EAW on the basis of Article 1(3) of the Framework Decision is to be commended, as it was for that matter recently confirmed also by the ECtHR (see Pirozzi v Belgium). Indeed, such a rigorous test ensures that mutual trust is not applied automatically and blindly, but at the same time it does not lead to its total vanishment, as would happen if any infringement of a fundamental right could be a reason for refusing the surrender (see case C- 411/10 and C-493/10, N.S. and others, § 82, and the Opinion of Advocate General Sharpston in Radu, § 81). This does not mean that to meet the “flagrant denial of justice” threshold every aspect of the trial needs to be unfair, but rather – to put it in the words of Advocate General Sharpston in Radu (§ 83) – that “the deficiency or deficiencies in the trial process should be such as fundamentally to destroy its fairness”.

However, Advocate General Tanchev’s restrictive interpretation on whether and when a lack of judicial independence amounts to a “flagrant denial of justice” is quite problematic. The CJEU has recently stressed in relation to Article 19 TEU that the guarantee of independence is “inherent in the task of adjudication” and “is essential” for the right to effective judicial protection under Article 47 of the Charter to be ensured and for the proper working of a judicial cooperation system (see case C-64/16, Associação Sindical dos Juízes Portugueses, §§ 41-43). It is accordingly hard to conceive that a lack of independence, of an alleged lower intensity, can be downgraded to a mere irregularity that does not inevitably taint every subsequent step of the proceedings. To the contrary, such case law, coupled with the possibility for the CJEU under Article 52(3) of the Charter to ensure a higher protection than the ECHR when giving its autonomous interpretation of a “flagrant denial of justice”, should lead to finding that the lack of judicial independence is always, and not only in certain cases as the Advocate General suggests, so serious as to amount to a “flagrant denial of justice”. The restrictive interpretation adopted by the Advocate General with the aim to limit the exceptions to mutual trust to the greatest possible extent, risks therefore transforming it in an “unduly stringent test” that is not compatible with the primary importance attached to judicial independence at both the ECHR and EU level.

The second aspect of the case is, however, is even more critical: to require a further individual assessment structured in the same way as in Aranyosi once systemic deficiencies of judicial independence are established and to thereupon allow only a postponement of the execution of the EAW is not only ill-founded, but also hazardous.

It is ill-founded because it fails to take into proper account the ontological differences between the fundamental rights at issue and the corresponding sources of their violations. Whereas an infringement of the prohibition of inhuman or degrading treatment stems from factual circumstances that may differ, for instance, from one prison to another, the source of a lack of judicial independence is to be found directly in the law, which – being of general nature – necessarily affects all judges subject to it to the same extent, irrespective of the specificities of the case they are called to decide. Indeed, the lack of judicial independence is always assessed, both at EU and ECHR level, only according to criteria that are general in nature and refer to the legislative framework – such as “the composition of the body and appointment, length of service and the grounds for abstention, rejection and dismissal of its members, in order to dismiss any reasonable doubt in the minds of individuals as to the imperviousness of that body to external factors and its neutrality with respect to the interests before it” (case C-506/04, Wilson, § 53). Case-specific considerations are to the contrary completely irrelevant (for the ECtHR see, Mustafa and Fecire Tunç v. Turkey, §§ 221-222, where it stressed that the independence of the investigating authorities under Article 6 ECHR requires an abstract assessment based on statutory criteria).

In requiring to take into account the specific circumstances of the case, the Advocate General seems to blur the boundaries between external judicial independence and impartiality, which is, indeed, related to the specific case. These two guarantees, however, remain separate: if a judge is not (externally) independent, he may still be impartial in one particular case, but he remains nevertheless not independent in respect of any case, as he objectively lacks an appearance of independence. In this connection, the Advocate General also seems to misread the ECtHR case law on extradition: in fact, the circumstances of the individual case are taken into account to assess the existence of a risk of flagrant denial of justice only if there are no sufficient elements to argue for a lack of independence in the general legal framework, and not as a further step to take when independence is not sufficiently ensured at legislative level (see Ahorugeze v Sweden, §§ 125-126; Yefimova v Russia, §§ 222-223).

In other words, there is no doubt that in order to postpone the surrender it is necessary to verify whether the specific person risks an unfair trial. However, when confronted with a possible breach of the right to a fair trial arising from insufficient judicial independence, such assessment should not be divided as in Aranyosi in two separated tests, a general and an individual one. To the contrary, the executing authority should perform a single assessment having as object solely the applicable national rules relevant for judicial independence according to the criteria developed by the CJEU. Indeed, in such situation the general and individual moments of the assessment overlap because, since the source of the violation is to be found exclusively in the law, systemic deficiencies at legislative level necessarily imply a risk of insufficient judicial independence also in the specific case. The second individual assessment, therefore, is not omitted, but is rather inevitably already incorporated in the general one.

Furthermore, once the risk of exposure to an unfair trial is established, a proper consideration of the nature of the fundamental right’s violation at hand should not merely lead to allowing a postponement of the execution of the EAW under Art. 1(3) of the Framework Decision in the same vein as in Aranyosi, as argued by the Advocate General, but rather to a refusal to execute it. The logic of postponing the execution – a means to preserve until the very last the effectiveness of cooperation – makes sense where the risk of a fundamental right breach can be discounted on the basis of the information offered by the issuing authorities on the specific circumstances of the case, as it happens for detention conditions. Why, however, should the execution of the EAW be postponed where the applicable law in itself is the source of the possible fundamental right’s violation and, accordingly, the issuing authority cannot give any meaningful assurance as to its independence in that particular case? In a similar situation, it rather seems to be implicit that the risk of unfair trial cannot be discounted in a reasonable time. Therefore, as suggested in the past by Advocate General Sharpston in her Opinion in Radu (§ 97), the court of the executing Member State should rather be able, on the basis of Art. 1(3) of the Framework Decision interpreted in the light of Article 47 of the Charter, to decide to put an end to the surrender decision. This is, indeed, what may happen also according to Aranyosi where the risk of inhuman or degrading treatment cannot be discounted within a reasonable time (§ 104).

The solution proposed by the Advocate General is finally also dangerous for the consequences it might have. Not only does it introduce an impossible burden of proof for the individuals concerned, who should demonstrate in what way the reforms of the judiciary actually affect the independence of the judge in their own trial without necessarily knowing beforehand who will decide on their case. But also, by requiring the judge to make an individual assessment that, even with the additional information provided by the issuing authority, he does not have the means to apply, such solution also determines a high degree of uncertainty that will most likely raise further thorny preliminary references.

Tomorrow we will see whether the CJEU will dare to adopt a more protective position than the Advocate General. One should, however, not underestimate the highly political sensitivity of the case and the practical effect of the proposed solution to suspend, in substance, all judicial cooperation with Poland before a decision on Art. 7 TFEU has been taken by the Council. In this perspective, it is more likely that an efficiency-interests-oriented approach to criminal law will prevail, allowing only for a postponement of the execution of an EAW and only in “serious cases” of judicial independence with regard to the specific case, to the detriment of the rights of the accused and, ultimately, of actual mutual trust.

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