Recent legislative developments in Poland have called into question the independence of the judiciary. In response to this, in September 2020, Dutch courts suspended extradition of requested persons to Poland and referred a question to the Court of Justice of the EU (CJEU) seeking clarification as to whether systemic or generalised deficiencies in a Member State’s legal system are sufficient to automatically trigger the suspension of extradition to that Member State.
The question referred to the CJEU by the Rechtbank Amsterdam (District Court) asked whether, in light of the worsening and general deficiencies in the Polish judicial system, it is entitled to refuse the surrender of a person requested by a Polish judicial authority without the need to examine in detail the specific circumstances pertaining to the European Arrest Warrant (EAW).
The Advocate General, in a non-binding opinion published on 12 November 2020, proposed that the Court confirm the case-law laid down in the judgment in Minister for Justice and Equality (Deficiencies in the system of justice), in which the Court ruled out the possibility that an executing judicial authority could automatically and indiscriminately refuse to execute any EAW issued by the Polish Courts. The AG proposed that the Court reply to the question posed by the Dutch court stating that in the absence of any formal determination by the European Council of a serious and persistent breach in the issuing Member State of the principles set out in Article 2 of the TEU, which include the rule of law, refusal to give effect to an EAW remains an exceptional course of action. Whether such “exceptional circumstances” exist in relation to the argument that the requested person would be at real risk of a breach of his fundamental right to an independent tribunal requires a “specific and precise assessment of the particular case”, including the requested person’s situation, the nature of the offence, and the factual context that forms the basis of the EAW. The AG went on to affirm that such risk may exist both where the systemic or generalised deficiencies existed at the time the EAW was issued, and in cases where those deficiencies arose later and still exist at the time of the requested person’s surrender.