02 November 2021

No Surrender to Poland

A Norwegian court suggests surrender to Poland under the EAW should be suspended in general

In the European battle over the independence of Polish courts, surrender of wanted persons according to the European Arrest Warrant (EAW) has been a minor but important front. Last week, a district court in Norway took a bold step and refused surrender to Poland due to the “significant greater danger and probability”(original in Norwegian, my own translation here and below) that a Polish court would not be a lawful judge. The ruling should be welcomed and invites the Norwegian Supreme Court and the CJEU to change their jurisprudence on surrender to Poland.

Since the Irish High Court requested a preliminary ruling from the CJEU in 2018 (C-216/18), surrender cases have allowed both the CJEU and national courts in the member states to pronounce on the independence of Polish courts. While the systemic deficiencies concerning judicial independence are very serious and clear for anyone to see, the CJEU has so far refrained from considering the deficiencies so grave that there is a presumption of a breach of the right to fair trial in general. In Joined Cases C-354/20 PPU and C-412/20 PPU, the CJEU held that an automatic refusal of a European arrest warrant requires a decision by the European Council suspending Framework Decision 2002/584 in respect of Poland. Instead, the CJEU clings on to its two-step test, whereby even in the face of a real risk of a breach of the right to fair trial, surrender is still possible if there are no substantial grounds for believing that the requested person will run that risk. Currently, requests for preliminary rulings from the district court of Amsterdam and the Irish Supreme Court are pending before the CJEU. Both ask whether the deficiencies in the Polish judiciary are such that they alone amount to a breach of the essence of the right to fair trial.

Given the CJEU’s position on surrender to Poland, the recent decision by the Vestfold district court in Norway is noteworthy. The decision is also noteworthy since it departs from two recent decisions of the Norwegian Supreme Court. In 2020, the Appeals Selection Committee of the Supreme Court accepted surrender to Poland in two cases (HR-2020-553-U, HR-2020-560-U). Based on case law from the ECtHR and the CJEU, the Appeals Selection Committee, comprised of three judges, found that Polish judges could offer a fair trial even if they were appointed following a politicised process and risk being sanctioned for their decisions. Due to the offences (burglary and robbery) and facts in the two cases, the Appeals Selection Committee did not find substantial grounds to believe the requested persons would not receive a fair trial. This cautious approach has been criticised for not taking into account the full scope and systemic consequences of judicial reforms in Poland since 2016 (see here, in Norwegian).

A bold intervention by the Vestfold district court

The surrender case decided by Vestfold district court concerns a Polish citizen wanted by Poland for drug related crimes. Currently the man is imprisoned in Norway, where he serves a sentence of 2 years and 5 months for other crimes. On the face of it, the district court could simply have followed the precedent set by the Appeals Selection Committee of the Supreme Court. It did not. Referring to new developments and to the request from the district court of Amsterdam currently pending before the CJEU, the Vestfold district court refused the surrender in the specific case and challenged the Supreme Court’s presumption that Polish courts could offer a fair trial. The district court noted that the developments in Poland since October 2020 have gone so far that “one must ask also in Norway whether one can still presume that Poland can offer a fair trial, if the disciplinary system in Poland influences the judges’ ability to be independent and impartial, and if surrender to Poland should be suspended in general”. In doing so, the Vestfold district court went further than the CJEU has so far dared to go.

The new developments referred to by the district court are both political and legal. As for political developments, the district court mentioned that the Polish government and the Polish Constitutional Tribunal have made it clear that Poland will not respect decisions from the ECtHR and the CJEU.

Taking the recent CJEU and ECtHR case law seriously

As for legal developments, the district court referred to the decisions by the ECtHR in Reczkowicz v. Poland and the CJEU in C-204/21 and C-791/19, which found that the Disciplinary Chamber of the Polish Supreme Court violates the requirement of judicial independence in both the ECHR and EU law. Interestingly, and perhaps boldly, the district court also interpreted those decisions to find defects in the system of judicial appointments. While neither the CJEU nor the ECtHR have pronounced specifically on the independence of the Polish National Council for the Judiciary following the 2017 reform, both courts did express doubts of its independence in the appointment of the Disciplinary Chamber (see Reczkowicz v. Poland, paras. 265, 280; C-791/19, para. 108). The lack of independence of the appointment body concerns the “established by law” criterion according to Article 6 of the ECHR. In this respect the district court referred to the decisions Xero Flor v. Poland and Guðmundur Andri Ástráðsson v. Iceland, concluding that any case decided by an unlawfully appointed judge would amount to a violation of Article 6.

It appears that for the district court, these recent decisions by the CJEU and ECtHR changed the game, as they establish deficiencies that affect the whole Polish judiciary due to the combined effects of undue pressure on judges by the Disciplinary Chamber and arguably politicised judicial appointments. The district court concluded that following the decisions by the ECtHR and the CJEU, there is now a “significantly greater risk and probability” that a Polish court be comprised of a judge that is not a lawful judge according to Article 6 of the ECHR.

It should be noted that the district court’s emphasis on Article 6 of the ECHR and not Article 47 of the EU Charter of Fundamental Rights is due to the fact that Norway is not a member of the EU. Norway is affiliated with the EU through the 1992 EEA Agreement, to which the Charter has not been incorporated. It is part of the EAW through a parallel agreement with the EU from 2006. In Norwegian law, the EAW is implemented in the Arrest Warrant Act 2012, where Section 8 requires Norway to refuse any surrender that would be in breach of the ECHR. However, given the dialogue between the CJEU and ECtHR in recent cases concerning the independence and lawful tribunal criteria, as well as the principle of homogeneity underpinning Norway’s relation to EU law through the EEA Agreement, case law from the CJEU on the EAW was directly applied by Norwegian courts.

A realistic approach to the two-step test

The district court did not formally discard the two-step test. However, due to the above-mentioned legal developments, the district court argued that the test should be adapted so that “the greater the general risk for a breach, the less specific grounds for a breach of Article 6 of the ECHR should be required in the specific case”. Having found a significantly greater risk for a breach due to the worsening situation in the Polish judiciary, the court put a firm emphasis on the first step of the test.  The district court therefore accepted without any discussion the requested person’s allegations that the process against him is staged and found that there were “substantial grounds” for a risk of a breach of the right to fair trial in the present case. The district court thus refused the surrender effectively based on general and systemic deficiencies in judicial independence in Poland.

The district court’s approach is to be welcomed. The CJEU’s hesitation in refusing all surrender to Poland is becoming increasingly out of sync with both its own case law on other issues concerning the Polish judiciary and the actual developments on the ground (see here at 5.5 for a fundamental criticism of the two-step test). As pointed out by Pech and Wachowiec, “in a situation of systemic attacks targeting the whole judicial system, there is by definition, already a ‘real risk’ of a breach of the fundamental rights to an independent tribunal and to a fair trial in every single case.” In this situation, an individual assessment of fair trial would be speculation.

Moreover, the fact that the system of judicial appointments in Poland has become politicised, as alluded to by the CJEU and the ECtHR, and established by the Venice Commission already in 2017, means that Poland cannot guarantee that the case of the person surrendered will be decided by a lawful tribunal according to Article 6 of the ECHR. Without guarantees for a lawful tribunal, how can you presume a fair trial?

The decision of the district court has been appealed and will probably come before the Supreme Court, which will hopefully decide the case in a panel of five judges or in a Grand Chamber of eleven judges to allow for a greater scrutiny of the actual state of the Polish judiciary and the case law of the CJEU and ECtHR. Since the district court cited new facts and legal developments when refusing surrender, it has offered the Supreme Court a way to depart from its previous decisions.

Perhaps the CJEU too could find a way forward in the Vestfold district court’s realistic approach to the two-step test. The CJEU in case after case already finds violations and established the existence of worsening systemic deficiencies liable to affect the independence of the Polish judiciary. It would only be consistent, in surrender cases to find that the general risk for a breach of fair trial is so high that few if any specific grounds should be required to refuse surrender.


SUGGESTED CITATION  Holmøyvik, Eirik: No Surrender to Poland: A Norwegian court suggests surrender to Poland under the EAW should be suspended in general, VerfBlog, 2021/11/02, https://verfassungsblog.de/no-surrender-to-poland/, DOI: 10.17176/20211103-052947-0.

2 Comments

  1. N.W. Fr 5 Nov 2021 at 15:35 - Reply

    Very interesting news and a fine analysis. However, do you think that this approach will, in practice, backfire on the taxpayers of the countries that refuse to extradite? I am talking about Realpolitik issues, but- regardless of how they were appointed- judges don’t really have a vested interest in being biased for or against drug dealers, so why would anyone automatically assume that they would judge those cases unfairly based only on the way in which the judges were appointed? Do you think that the most severe consequences like the refusal of extradition should be reserved for the cases that concern political persecution? Otherwise, any garden variety criminal can decide to serve his sentence in a fancy Norwegian prison at the Norwegian taxpayers‘ expense and I don’t think that Poland would mind at all. In my mind, the two step test is precisely about avoiding this practical consequence of overly wide presumption.

    • Eirik Holmøyvik So 7 Nov 2021 at 20:14 - Reply

      Interesting point. So far, there has been no such financial argument as to surrender and extradition cases, but that may be that they have not been subject to political debate in Norway yet. There has indeed been some discussion as to the rather high proportion of non-Norwegian citizens in Norwegian prisons. And those prisons are indeed more comfortable than most prisons elsewhere.

      I also think you are correct to assume that most judges will not suspect „normal“ criminals to receive an unfair hearing in Poland or other states with declining rule of law standards. That is indeed the rationale behind the two-step test of the CJEU. The problem with Poland is that 1) the general external pressure on the judiciary is so strong and comprehensive that it undermines the trust in the system in general, so that you can fear arbitrary treatment, and 2) that Poland cannot guarantee lawful tribunals. The question is whether the extraditing state can legally take that risk, not a risk of less than ideal procedures and those kinds of problem (which is why the ECtHR requires „flagrant denial of justice“), but rather the fact that the extradited person will not have a lawful trial at all, since the court may not be lawful.

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