The rule of law conflict in Poland has been simmering for years, but it is only recently that the country has started to feel the consequences. The European Court of Justice (ECJ) imposed a fine of one million euros a day a few weeks ago because the government in Warsaw doesn’t care that the Polish disciplinary body – the central body responsible for the dismantling of justice – has been declared illegal. In addition, the commission is holding back payments from the Corona recovery fund, further financial sanctions could follow.
But the liquidators of the rule of law are not only concerned with money. This Tuesday, the ECJ is negotiating a consequence that should not be less sensitive for the ruling PiS party: Can an EU arrest warrant for Poland still be valid if the legal basis is noticeably eroding?
Because the EU arrest warrant, a system of cross-border criminal prosecution that has so far worked quite properly, offers advantages that are of great political importance, especially for a conservative party like the PiS. Being able to arrest wanted or already convicted criminals in other European countries without the bureaucratic effort of a request for legal assistance increases the effectiveness of the courts immensely. The EU arrest warrant is the long arm of the judiciary – which of course could quickly become a tied arm should the ECJ intervene.
The District Court of Amsterdam has appealed to the ECJ in two urgent proceedings, including the case of a Polish citizen who was sentenced to two years’ imprisonment in Poland in April for a violent offense and is now to be transferred by the Dutch authorities. But the district court doubts whether the fugitive Pole had previously been convicted by a “court established by law”, as stated in the EU Charter of Fundamental Rights.
A Dutch court doubts whether a criminal can be extradited to Poland
As a justification, the Dutch court does not refer to the rapidly growing number of ECJ rulings, but to a decision from Poland itself. The Supreme Court in Warsaw, the highest instance in civil and criminal matters, opposed the progressive dismantling of the judiciary in January 2020 braced and under the then President Małgorzata Gersdorf A spectacular verdict is passed: All judges who have been selected by a politically controlled State Judicial Council (KRS) and appointed by Poland’s President since the beginning of 2018 are, according to the judgment, not independent judges under EU law and are therefore not allowed to judge. The Amsterdam District Court referred to a list of the names of 384 such neo-judges as of January 2020. “It is likely that this number of appointments has increased over time,” the court writes.
Anyone who is convicted in Poland is supposed to mean that they have a high risk of sitting before a judge who has been installed in violation of the rule of law. And this without being able to defend himself against it: A legal remedy with the argument that the court was not properly staffed was abolished in Poland in February 2020.
A judgment on the EU arrest warrant is to be issued in a few months: the European Court of Justice in Luxembourg.
(Photo: Arne Immanuel Bänsch / dpa)
The case could give the ECJ an opportunity to reconsider its position on the EU arrest warrant, now that it too is insisting with increasing emphasis on the independence of the Polish judiciary. Three years ago he had to decide whether the EU arrest warrants for Poland were still valid. At that time, the highest EU court made argumentative efforts to save this instrument, which is so important for European criminal prosecution, from the crisis. It is not enough that there are systemic deficiencies in a country with regard to the independence of the judiciary. Rather, it must be checked in each individual case whether there is a “real danger” that the alleged criminal will actually end up in a court that is unlawfully occupied. That was a high hurdle, which at least then was not easy to take, because the work of the destroyers of the rule of law was not as advanced as it is today; independent courts were even more common in Poland at the time.
The EU arrest warrant is therefore back on the agenda of the ECJ, incidentally also through a further procedure, because the Supreme Court of Ireland submitted similar questions to the ECJ in the summer about the arrest warrant. All questions about the basis of mutual trust in Europe, if you will. A judgment can be expected in a few months.