Alessandro Rosanò (Università di Firenze)

1. On 23 July 2021, the Irish Supreme Court decided to pose some preliminary questions to the European Court of Justice (ECJ) regarding the protection of fundamental rights in the framework of the European Arrest Warrant (EAW) mechanism and the ongoing rule of law crisis in Poland (for an introduction to the Polish scenario, see Curti Gialdino, Kovács and Scheppele, Sadurski and Festa). As a legislative reform passed in 2019 prohibits to challenge the validity of the appointment of the members of courts and tribunals, Polish judges could be appointed in a way that is not in accordance with the law, and the parties could not challenge those appointments.

This may have a negative impact on the right to a fair trial, especially for what concerns the right to a tribunal established by law as provided for under Article 47 of the Charter of Fundamental Rights of the European Union (EU). Therefore, in two cases regarding the execution of EAWs issued by Polish judicial authorities, the Irish Supreme Court stayed the proceedings and refer some preliminary questions to understand whether the so-called Aranyosi and Căldăraru test applies to this kind of situation.

As it is known, in that judgment the ECJ held that if the executing judicial authority is in possession of evidence of a real risk of inhuman or degrading treatment of individuals detained in the issuing Member State, that authority must assess the existence of that risk by relying on objective, reliable, specific, and properly updated information demonstrating that systemic or generalised deficiencies are in action in the issuing Member State (first step).

If this situation turns out to be true, the executing judicial authority must perform another specific and precise assessment on whether there are substantial grounds to believe that the individual concerned will be exposed to that risk following their surrender (second step). To this end, it must request information from the issuing judicial authority, and it may set a time limit within which to provide it.

If this makes it possible to discount the existence of a real risk of inhuman or degrading treatment, the EAW must be executed. Otherwise, it will be up to the judicial authority of the executing Member State to decide whether to terminate the surrender procedure (on this judgment, see Anagnostaras and Lazzerini).

This line of reasoning has been confirmed for the prohibition of torture and inhuman or degrading treatment, in Generalstaatsanwaltschaft (Conditions of detention in Hungary) and Dorobantu and as for the right to a fair trial with specific regard to the right to an independent tribunal, in Minister for Justice and Equality (Deficiencies in the system of justice) and Openbaar Ministerie (Indépendance de l’autorité judiciaire d’émission) (on these two judgments, see infra; on the Aranyosi and Căldăraru case law, see Marino and Panella)

Thus, the purpose of this post is to clarify the terms of the Supreme Court’s initiative in light of the existing jurisprudential context and to identify its limits.

2. Since Framework Decision 2002/584/JHA on the EAW was adopted, legal scholars have raised doubts regarding the fact that it does not provide for grounds for refusal dealing generally with an EAW going against the protection of fundamental rights (see for instance Peers and Mitsilegas). In fact, apart from cases of EAWs conflicting with the ne bis in idem principle or EAWs issued following a trial where the requested person did not personally appear and they were not responsible for this (in absentia proceedings), EAWs that are not consistent with the protection of fundamental rights should be executed.

However, when transposing the EAW Framework Decision into national law, some EU Member States compensated for the lack of grounds for refusal of recognition and execution related to the protection of fundamental rights. They did so by providing that EAWs shall not be executed if they adversely affect a fundamental right of the requested person. The European Commission criticized this choice, stating that those Member States had gone beyond what was provided for in the Framework Decision, thus creating a risk of inconsistency in the EAW system, since they could refuse recognition and execution on grounds not provided for in the Framework Decision itself (see here). However, at that time, the European Commission could not initiate infringement proceedings in the former Third Pillar domain (see Article 35 of the Treaty on the European Union before the Lisbon Treaty came into force). This means that things have not changed with those transposing legislations, and it is possible to find grounds for refusal of recognition and execution regarding the protection of fundamental rights, for instance, under Cypriot, Greek, Italian, and Irish law.  

As per Irish law, section 37 of the EAW Act provides that a person shall not be surrendered if this act goes against the ECHR, ECHR Protocols, the Irish Constitution, or if surrender would expose that person to forms of discrimination, or again if the person would be sentenced to death, a death sentence would be carried out, or if the person would be tortured or subjected to other inhuman or degrading treatment.

Therefore, for the Irish legal system, we should say the protection of fundamental rights is key for implementing the EAW mechanism. On a merely normative level, this is true, as is confirmed by the Irish Supreme Court when it stated that some “egregious circumstances such as a clearly established and fundamental defect in the system of justice” in the issuing Member State would warrant a surrender refusal pursuant to section 37 (see Minister for Justice, Equality & Law Reform v Brennan and Minister for Justice, Equality & Law Reform v Stapleton). Furthermore, the Supreme Court acknowledged that when dealing with this kind of issues, the executing authority should consider all the material available as well as material that it obtained itself, if necessary. It should rigorously examine whether there is a real risk of sending a person to the requesting State, and it may refer to reports of independent international human rights organisations and governmental sources (see Minister for Justice, Equality & Law Reform v Rettinger). However, over time, it does not seem that section 37 has played a significant role in refusing the recognition and execution of EAWs (see Fahey). Thus, the relevance and utility of section 37 could be called into question.

A significant development in the Irish and ECJ case law was provided by the Celmer case, in which some Polish judicial authorities sought the surrender of Artur Celmer to prosecute him for several drug trafficking offences. Among other things, Mr Celmer protested that his right to a fair trial would be violated, should the EAWs be executed. In this regard, he relied on the provisions of the European Commission’s Reasoned Proposal from 20 December 2017, issued in accordance with Article 7(1) TEU for a Council decision regarding the determination of a clear risk of a serious breach of the rule of law in Poland. Consequently, it was argued that the Polish situation would create a real risk of a flagrant denial of justice and negatively impact mutual trust between the Member States.

The Irish High Court, after seeking the assistance of the ECJ (see Minister for Justice and Equality (Deficiencies in the system of justice); for a comment, see Bárd and Van Ballegooij and Konstadinides), held that the rule of law had been systematically damaged in Poland by the cumulative impact of the legislative changes that had taken place at the time (Minister for Justice and Equality v Celmer (No.4)). In the end, however, it ruled in favour of the surrender, holding that “notwithstanding the reference to the guarantees depending on the person judging the case, there has been no production of statistics or even anecdotal evidence of trials lacking in fairness since the changes regarding the judiciary in Poland. Moreover, it has never been suggested that fair trial rights (…) have in any way been affected” (Minister for Justice and Equality v Celmer (No.5)). Thus, while there was a systemic or generalised deficiency in Poland (first step of the Aranyosi and Căldăraru test), it was not possible to come to the conclusion that the requested person would be exposed to the specific and precise risk of having their right to a fair trial violated (second step of the test).

Considering the importance of the case, Mr Celmer was granted leave to appeal against this decision. In Minister for Justice and Equality v Celmer, the Irish Supreme Court confirmed how relevant the Aranyosi and Căldăraru test’ second step is. With a wording quite similar to High Court’s, the Supreme Court confirmed that there was no evidence, even anecdotal, suggesting the changes had affected the hearing or the determination of charges. Furthermore, there was no evidence of the impact of any of those changes upon trials conducted in any of the courts that had issued the EAWs in the actual case.

Since then, this judgment has become the reference point for the Irish High Court. Over time, Irish judges have dismissed objections related to the Polish legislative changes in other cases for reasons that are similarly related to the second step of the test (see for instance Minister for Justice and Equality v Florczak and Minister for Justice and Equality v Łukasik).

4. The above line of reasoning has been confirmed in the Orlowski and Lyszkiewicz cases, where some EAWs were issued by Poland in order to prosecute Mr Orlowski and to enforce already handed-out imprisonment sentences against Mr Orlowski and Mr Lyszkiewicz. In both cases it was argued inter alia that their surrender would violate their right to a fair trial because of the lack of independence of Polish courts. Nevertheless, the High Court of Ireland held that none of them had put forward evidence as to how the systemic or generalised deficiency in Poland would determine a real risk of breaching their fundamental rights. As a consequence, the EAWs should be executed (see Minister for Justice and Equality v Orlowski and Minister for Justice and Equality v Lyszkiewicz).

However, another reason militating against the execution of the EAW related to Polish legislative reforms on judicial appointments. The Polish Act on the System of Common Courts from 20 December 2019 provides that it is not permitted to question the powers of courts and tribunals, which means that motions regarding the legality of the appointment procedure of judges should be left unprocessed. According to the respondents, this should be assessed in light of the recently-issued judgment of the European Court of Human Rights (ECtHR) in Guðmundur Andri Ástráðsson v. Iceland.

In this judgment, the ECtHR’s Grand Chamber said that when assessing whether a judicial body may be considered a tribunal established by law and, in particular, whether the appointment process has been lawful, a three-pronged test must be resorted to. This test consists of the following requirements: (1) whether there has been a manifest breach of domestic law, meaning an objective and genuinely identifiable breach; (2) whether that breach is purely technical in nature and does not have an impact on the appointment process, or if it has been carried out in disregard of the most fundamental rules regarding the matter; (3) whether the review conducted by national courts lead to the conclusion that there has been a violation of the right to a tribunal established by law (on the case, see Strong; on the ruling, see Graver, Spano and Rosanò).

In recent months, the ECtHR has already had the opportunity to apply the threshold test to some actual cases brought before it. In Xero Flor w Polsce sp. z o.o. v. Poland, the Court held that the appointment of a member of the Polish Constitutional Court had been in violation of Article 6(1) ECHR (see Leloup and Coli). Furthermore, in Reczkowicz v. Poland, the ECtHR dealt with the composition of the infamous Polish Supreme Court Disciplinary Chamber (see Gajda-Roszczynialska and Markiewicz), finding that the right to a tribunal established by law had been violated.

The High Court believed this element should also be rejected as again no evidence was given by the respondents. According to the High Court, even if there is a possibility that they will be put on trial before a body which is not a legally established tribunal, such scenario is not enough to refuse EAW execution. Yet, in light of the recent jurisprudential development in Strasbourg, they were granted leave to appeal before the Irish Supreme Court.

Before the Supreme Court, the appellants argued that following the reforms passed in Poland, judges may be appointed in a way that is not in accordance with the law, and those appointments cannot be challenged. Furthermore, ECJ case law (for instance, Minister for Justice and Equality (Deficiencies in the system of justice))does not provide any guidance on this point, as the issue at stake is not the independence of the judiciary but the legality of courts, meaning whether or not they are courts of law.

In this regard, the Irish Supreme Court observed that the legislative reforms passed in Poland are “even more troubling and grave” now for their impact on the rule of law than they were when Minister for Justice and Equality (Deficiencies in the system of justice) was handed down, especially concerning the impossibility of challenging the appointment procedure legality.

Therefore, the Irish Supreme Court decided to refer some preliminary questions to the ECJ, asking inter alia (1) whether the two-pronged test developed by the ECJ applies to the right to a tribunal established by law, and (2) whether the absence of an effective remedy to challenge the validity of the appointment of judges in Poland requires the executing Member State to refuse the surrender (see Minister for Justice and Equality v Orlowski and Minister for Justice and Equality v Lyszkiewicz).

5. As for the first question, the answer seems to be quite easy: yes, the two-pronged test applies to the right to a tribunal established by law. As the ECJ has already stated that this applies to the prohibition of torture and inhuman or degrading treatment (Aranyosi and Căldăraru) and, most importantly, to the right to a fair trial regarding the right to an independent court (Minister for Justice and Equality (Deficiencies in the system of justice), there is no reason to exclude the right to a fair trial regarding the right to a tribunal established by law and, in general, to exclude other fundamental rights.

The main issue concerns the second question, because the Irish Supreme Court is essentially asking whether it would be possible to refuse EAW execution without performing the second step of the test, i.e. by simply assessing whether there are systemic or generalised deficiencies in the issuing Member State.

The above-mentioned judgments and many others that should be considered (see for instance Broda and Bojara v. Poland for the ECtHR; and for the ECJ, A.K. (Independence of the Disciplinary Chamber of the Supreme Court) and Commission v Poland (Régime disciplinaire des juges)) may provide many elements that could be taken into account by the ECJ in answering to the Irish Supreme Court’s second preliminary question, as they provide a comprehensive and precise depiction of the present judiciary conditions of the Polish legal system. Everything seems to point in just one direction: the rule of law has been compromised in Poland and mutual trust should be called into question.

Nevertheless, it seems unlikely that the ECJ is going to change its approach and allow for the application of the test without the second part, as a judgment issued by the ECJ in December 2020, on a request from the Amsterdam District Court, seems to confirm (see Openbaar Ministerie (Indépendance de l’autorité judiciaire d’émission)).

In truth, the Amsterdam District Court referred some preliminary questions to understand if it would be possible to not execute EAWs issued by Polish authorities by performing only the first part of the test. In other words, the executing judicial authority should limit itself to assessing the existence of systemic or generalised deficiencies in the issuing Member State, without needing to assess the specific and precise risk that could be run by the requested person. This opinion was formed considering the severe impairment of the rule of law in Poland. However, the ECJ rejected that line of reasoning. According to the ECJ, it would amount to an automatic refusal to execute any EAW issued by that Member State and a de facto suspension of the EAW in relation to it. That is something that may happen only if the Council of the EU, acting in compliance with Article 7(3) TEU and recital 10 of the EAW Framework Decision, suspended the EAW for that Member State. Besides, an interpretation to the contrary would mean that Polish courts and tribunals could not be regarded as judicial authorities. As a consequence, they could no longer refer preliminary questions to the ECJ (for a comment, see Rossi).

In light of this, it is far-fetched to believe that the ECJ is going to overturn its ruling any time soon.

This does not mean the approach adopted by the Luxembourg Court should be uncritically accepted. As famously held by the ECtHR in Avotiņš v. Latvia, the methods used to create the EU’s Area of Freedom, Security, and Justice must be consistent with the protection of fundamental rights and limiting this to exceptional cases would go against the ECHR (see Biagioni and Feraci).

The process followed by the ECtHR when assessing a possible fundamental rights’ violation seems to be more convincing. Under Article 35(3)(b) ECHR, the Strasbourg Court shall declare inadmissible an individual application if the applicant has not suffered a significant disadvantage, unless respect for human rights as defined in the ECHR and its Protocols requires an examination of the application on the merits. Thus, a de minimis rule is set which allows the Court to assess an individual application that is not related to a systemic deficiency. In fact, systemic or structural problems may lead to pilot or quasi-pilot judgments, but still require the Court to assess whether there has been a violation in the case it is taking into consideration.

Instead, the approach developed by the ECJ regarding EAW execution seems to work the other way around: first, systemic or generalised deficiencies must be assessed in the issuing Member State; then, it must be established whether there are substantial grounds to believe that the individual concerned will be exposed to the risk of fundamental rights violation. Thus, a lack of systemic or generalised deficiencies means that a violation that might take place in a particular case would not prevent the execution of an EAW.

This is consistent with how the ECJ has interpreted the principle of mutual trust so far (see Adhésion de l’Union à la CEDH and, among others, Accord ECG UE-Canada), but it may lack consistency with ECtHR case law. Apart from what the Strasbourg Court held in Avotiņš, the ECtHR has acknowledged that the principle of mutual recognition should not be applied automatically and mechanically. Developing on the equivalent protection doctrine, the ECtHR has held that the courts of a State which is both a Contracting Party to the ECHR and an EU Member State must give full effect to a mutual-recognition mechanism where the protection of ECHR rights cannot be considered manifestly deficient. On the contrary, if a serious and substantiated complaint is raised about manifest deficiencies and that situation cannot be remedied by EU law, they cannot refrain from examining that complaint on the grounds that they are applying EU law (see Pirozzi v. Belgium, Romeo Castaño v. Belgium, and Bivolaru and Moldovan v. France).

Thus, it can be said that the ECtHR applies a different methodology than the ECJ as it does not follow a two-step approach and it immediately focuses on the personal situation of the applicant and the individual risk (see Wahl and Callewaert). In this regard, one should consider that a manifest deficiency is hardly a systemic or generalised deficiency, i.e. a systemic or generalised deficiency surely is manifest, but a manifest deficiency does not necessarily amount to a systemic or generalised one.

Therefore, it looks like ECtHR case law and ECJ case law are at odds and if authorities continue to execute EAWs in a way that is coherent with the Aranyosi and Căldăraru test, this will expose the EU Member States to condemnation before the ECtHR (as happened to France in the previously mentioned Bivolaru and Moldovan v. France case).

7. In the book of Joshua, the Hebrew’s conquest of the Promised Land is narrated. One of the most famous events is the fall of Jericho, an important city that was surrounded by seemingly impassable walls. Despite this, the Hebrews were victorious not because of military action, but because of an act of faith. Following the instructions that God had given to Joshua, they marched around the city for seven days. On the seventh day, after the priests had blown their trumpets and the people had given their war cry, the walls collapsed.

Without wishing to be blasphemous, the situation that has arisen in recent years regarding the protection of fundamental rights in the EAW framework is somewhat reminiscent of this biblical story. There is an obstacle between a certain goal and those who would like to achieve it, which can only be overcome by an act of faith. The goal is the protection of fundamental rights within the EAW system and judicial cooperation in criminal matters in general. Those who would like to achieve this are some national courts that are particularly sensitive to the issue. The obstacle, the walls of Jericho, is the way in which the ECJ has interpreted the principle of mutual trust as the foundation of judicial cooperation in criminal matters. Finally, the act of faith can be seen in the firm belief that the ECJ may radically change its interpretation on this matter, giving rise to a révirement which – one may say – would be among the most revolutionary in the relevant case law. As a matter of fact, a change in the ECJ’s case law seems to be sorely needed. However, following the judgment delivered in Openbaar Ministerie (Indépendance de l’autorité judiciaire d’émission), it is unlikely that the Luxembourg Court will take the opportunity offered by the Irish Supreme Court to revise its approach, as that would go against the principle of legal certainty. More time is going to be needed before the walls of Jericho fall but, in this author’s view, it is going to happen sooner or later. It is just a matter of having faith in the ECJ’s capacity to regenerate EU law through its judgments, which is something that (since Stauder) has constantly happened regarding the protection of fundamental rights in the EU legal system. Then, faith will lead to a new way of interpreting mutual trust.