Referrals and Reactions: Poland and the Rule of Law

IIEA23rd March 20186min
The Irish High Court has asked the Court of Justice of the European Union to rule on whether the changes to Poland’s judiciary undermine its independence and jeopardise the cooperation between Members States on the European Arrest Warrant.

This blog deals with the issue of Poland’s rule of law and its implications. For a full background brief on this issue, please see our recent paper Maintaining the Rule of Law in Poland: What Next for the Article 7 Proceedings?

 

High Court Referral

On Monday, 12 March, Justice Aileen Donnelly decided to refer certain questions to the Court of Justice of the European Union (CJEU) to address concerns that the recent legislative changes made in Poland have fundamentally changed the nature of the relationship between Poland and Ireland upon which the European Arrest Warrant Framework Decision (EAW) is premised. Artur Celmer, a Polish citizen, was arrested in May 2016 after three European Arrest Warrants were issued by Polish authorities, however, he has objected to his surrender to Poland on the grounds that the recent legal changes will prevent him from receiving a fair trial.

In referring the case to the CJEU, Justice Donnelly stated that “The recent changes in Poland have been so damaging to the rule of law that this Court must conclude that the common value of the rule of law” as well as “democracy in Poland” had been breached. The High Court has asked the CJEU to rule on whether the changes to Poland’s judiciary undermine its independence and jeopardise the cooperation between Members States on the EAW.

 

European Arrest Warrant

The European Arrest Warrant was introduced on 1 January 2004 to enhance cooperation between Member States in the area of extradition and to create a unified process for cross-border judicial surrender. EAWs are issued by judicial authorities in Member States to seek the return of a person who is wanted by a Member State for a crime. The warrant can be for a person to stand trial, face sentencing after conviction or to serve a sentence already handed down by a court in that country.

The EAW is based on the concept of mutual recognition of judicial decisions based on the  high level of confidence between Member States in the Area of Freedom, Security and Justice. The principle of mutual recognition is regarded as the ‘cornerstone’ of judicial cooperation in the EU. According to the CJEU, the EAW can only be suspended in the event of a “serious and persistent breach by one of the Member States”. Justice Donnelly’s concerns were based on her view that the recent legislative changes in Poland amount to systemic breaches of the rule of law and may therefore have undermined the mutual trust and confidence between the Member States required to operate the EAW system.

 

Article 7 Proceedings and Rule of Law Concerns in Poland

The Polish Government ignored the decisions of the Polish Constitutional Tribunal to the effect that the changes made by the Polish Legislature were unconstitutional and the views of EU Institutions and of other Member States who have expressed serious concern over the new laws. On 20 December 2017, the President of Poland, Andrzej Duda, signed the following into law:

  • The Act on Ordinary Courts Organisation

The changes made to this law increase the powers of the Ministry of Justice with regard to the appointment and dismissal of officials, the promotion and appraisal of judges and the disciplining of judges.

  • The Act on the National Council of the Judiciary (NCJ)

The NCJ is the body responsible for appointing judges. Changes to this law have transferred to the Polish parliament final approval of the appointments to the NCJ itself. This now means that 22 of the NCJ’s 25 members are appointed by either the Polish parliament or by the President.

  • The Act on the Supreme Court (SC)

Two of the most significant changes to this law are the lowering of the retirement age for judges from 70 to 65 years old (forcing almost 40% of current judges to retire, although the President has discretionary power to retain some) and the establishment of an ‘Extraordinary Chamber’ within the SC with the power the power to reopen old cases.

As a response to these moves by the Polish government, and following two years of dialogue on the Rule of Law between the European Commission and the ruling authorities in Poland, the European Commission formally triggered Article 7 of the Treaty on European Union in December 2017. Article 7 is an EU infringement procedure that can be used against Member States in the event of “serious and persistent breach by one of the Member States”. Article 7 can result in the suspension of voting rights for a Member State and the imposition of sanctions. The absence of judicial independence resulting from the moves made by the Polish government was deemed to raise serious questions about the effective application of EU law in areas as various as child custody disputes and the execution of European Arrest Warrants.

The rule of law is one of the founding values in the EU and for European Commission Vice President, Frans Timmermanns, defending the separation of powers is of “existential importance not just for the Polish nation but for the EU as a whole”.

 

Reaction to High Court Referral

The Polish Government and media have reacted furiously to the High Court’s decision. Poland’s Deputy Justice Minister, Marcin Warchoł, suggested that the High Court is involving itself in political agendas. The Deputy Justice Minister said that Poland is being singled out for unfair criticism and questioned whether Justice Donnelly would “surrender criminals to Germany or Spain”.

However, the government’s opposition and leading law professors in Poland, who opposed the judicial changes, have welcomed Justice Donnelly’s decision. Professor Marcin Matczak of the University of Warsaw’s law faculty said “I hope this case will be the beginning of the end of the dismantling of the rule of law”. By bringing the case to the CJEU, they hope that there could be more tangible implications for the Polish Government

 

Implications

This case is being referred to as ‘the lead test case’ in Europe on surrender to Poland and is a direct result of the recent legislative changes in Poland. In her decision to refer certain questions to the Court of Justice of the European Union, Justice Donnelly stated that the “respect for the rule of law is essential for mutual trust in the operation of the European Arrest Warrant” process and that the legislative changes over the last two years have been “so immense” that the High Court was forced to conclude that the rule of law in Poland has been “systematically damaged”.

The High Court has decided that this systematic damage is enough to raise the question as to whether the principles of mutual trust and confidence have been breached. The Counsel for Mr Celmer, Seán Guerin SC, said the situation was a “systemic threat to the entire system of the rule of law and, in that sense, it was not possible or even necessary to isolate (Celmer’s) circumstances in order to establish a violation”.

The CJEU now has to make a decision which could have huge implications for the legal basis that underpins the EAW and, as a result, for Poland itself. If the CJEU were to confirm the concerns of Justice Donnelly, the ideas of mutual trust and confidence which form the fundamental structure on which the EAW is based have been fractured. Further still, according to Gavin Barrett of the UCD Sutherland School of Law, “Poland will be in open violation of EU law, and as such potentially subject to prosecution and major financial sanctions.”

The case will return to the High Court on Wednesday, 21 March 2018, when the terms of the questions which are to be referred to the CJEU by the High Court will be decided.

 

Authored by Eóin O’Keeffe, Researcher (Justice & Home Affairs), IIEA