Co-founder and editor of Rule of Law in Poland and coordinator of The Wiktor Osiatyński Archive, a rule of law…

The unprecedented decision shows that a court in Germany does not trust that a process brought against a Polish citizen in Poland will be conducted with respect for the fundamental right to a fair trial. This is not an expression of distrust towards Polish judges, but rather towards the system built by the ruling majority. The straw that broke the camel’s back was the system of disciplinary liability and the Muzzle Law.

[text by Anna Wójcik, who you can follow on Twitter at @annawojcik]

For the first time, a court in Germany has ruled that it could not release a Polish citizen to Polish authorities under the European Arrest Warrant (EAW) procedure because, as a result of changes in the judiciary, including in particular the adoption of the so-called Muzzle Law, it could not trust that a Polish court would guarantee the extradited person’s right to a fair trial. It has suspended the execution of the EAW and is demanding more information about the situation in Poland.

More on the Muzzle Law: https://ruleoflaw.pl/venice-commission-opinion-on-the-muzzle-law/

The Oberlandesgericht Karlsruhe (Karlsruhe Higher Regional Court) thus ruled in the case Ausl 301 AR 156/19. In its justification, it pointed to recent developments in the Polish judiciary.

The Court of Karlsruhe invoked a resolution adopted on 7 January 2019 (Ausl 301 AR 95/18), which quoted a judgment of the EU Court of Justice (C-216/18) in response to a question from an Irish High Court on whether it can send a Polish citizen back to his country under the European Arrest Warrant procedure.

The CJEU indicated in that judgment that judicial independence is a necessary element of the right to a fair trial, and it means that judges on the bench hearing a case must be independent – in other words, they must not be subjected to political or any other pressure in the performance of their duties. It also recalled the CJEU judgment of 19 November 2019, in which it laid down the criteria for an independent court and bodies involved in the process of appointing judges, such as national judicial councils.

Respecting both these judgments of the CJEU, the Karlsruhe court conducted a two-stage test to assess whether, in the specific case under consideration, a person sent back to Poland will be guaranteed a fair trial.

To this end, it first assessed whether there is a threat to the rule of law in Poland. It found that there is. Reference was made to previous judgments by courts in Karlsruhe (OLG Karlsruhe, 07.01.2019, Ausl 301 AR 95/18) and Düsseldorf (OLG Düsseldorf, 14.06.2019, 4 AR 38/19), in which the same was found when these German courts examined whether Poles should be sent back to Poland under EAW procedures.

The court in Karlsruhe then proceeded to the second part of the test, that is to say, to assess whether there are serious, proven circumstances that make it likely that a person sent back to Poland will not have a fair trial.

In earlier cases pending before courts in Karlsruhe and Düsseldorf in 2019, it was held at that stage that such a right would nevertheless be respected. It was only the court in Karslruhe, in its judgment of 17 February 2020, which ruled that the defendant’s right to a fair trial would no longer be respected.

What happened in Poland between 2019 and February 2020? The reason is obvious: the Muzzle Law came into force.

In its judgment, the court in Karslruhe noted that on 10 February 2020, the text of the Muzzle Law was translated into German and a 31-page document was made available to courts in Germany. Therefore, it could already be used in its ruling.

Europe keeping an eye on Polish courts

In its judgment, the German court cited CJEU judgments in cases involving complaints by the European Commission against the Polish government for lowering the retirement age for judges of the Supreme Court and common courts, in which the Luxembourg tribunal ruled that EU law had been breached.

When reporting on the case, Deutscher Richterbund, the German association of judges, concluded that the changes introduced in Poland regarding disciplinary proceedings against judges, combined with the lack of independence of disciplinary courts, justify doubts about the future of the independent judiciary in Poland. It also mentions the European Commission’s request for an interim measure in the form of suspension of the work of the Disciplinary Chamber of the Polish Supreme Court until the CJEU rules on the Commission’s complaint against the model of disciplinary responsibility for judges in Poland.

As early as 2018, the Irish High Court expressed doubts as to whether the changes introduced in the Polish judiciary allowed it to return a Polish citizen under suspicion of an offence, Artur Celmer, to face court in Poland.

This led to the Irish judge Aileen Donnelly’s famous preliminary question to the EU Court of Justice.

The CJEU then replied that the courts of EU Member States must themselves assess, in each case under consideration, whether the court to which they are extraditing to on the basis of the EAW fulfils the criteria for independence under EU law.

The Luxembourg Court has provided a list of criteria and sources that European courts (national courts in EU Member States) should use in making such an assessment – including documents from the European Commission and the Venice Commission.

The CJEU outlined the criteria for an independent court in its landmark ruling of 19 November 2019, in response to questions submitted by the Polish Supreme Court.

Doubts about the certainty of a fair trial for EAW returnees in Poland were also expressed by courts in the Netherlands, where extradition decisions have been suspended in several cases.

Koen Lenaerts, President of the EU Court of Justice, spoke about the principle of mutual trust in an interview for ruleoflaw.pl:

“Mutual trust … means that Member States may make different choices, but also that they must be able to trust each other because they share common values.

For instance, behaviour that constitutes a criminal offence in Belgium may not be punishable under criminal law in the Netherlands, Poland, or Portugal. But the criminal proceedings in all Member States of the EU must be conducted before fully independent, impartial courts, according to fair trial rules, with the rights of the defence being respected and appropriate rules on the administration of evidence observed.

There is thus a basket of rules that need to be respected in order for a judge in one Member State to put trust in proceedings before a court in another Member State, which are governed by rules reflecting different legislative choices made in that Member State.

It is very important to distinguish this basic level of commonality of values and meta-constitutional principles from the choices that each State makes within this common framework.”