A Warrant to improve the rule of law

Of all the EU justice instruments in common use, there is a good argument for saying that the European arrest warrant (EAW) has brought about the most surprising changes. A recent Irish case might be its most explosive development yet.

As we know, the government has said that it would like to remain part of the EAW after Brexit, despite Brexiteers’ objections – see Theresa May’s Munich speech in February, for instance.

The UK was at the forefront of the trend that began using the EAW to raise the question of prison conditions in other Member States, and whether they breached detainees’ human rights. This was before the Court of Justice ruled that this ground could be deployed as a basis for refusing to implement the EAW in such cases – see the Aranyosi and Căldăraru cases (C-404/15 and C-659/15 PPU). For instance, Lithuania found some years ago that courts in the UK and Ireland asked for assurances that surrendered persons would be detained only in Kaunas prison, evaluated as satisfactory by a British expert, and not in other named prisons. In this way, the EAW raised the standards of prisons around the EU.

Now to the recent explosive Irish case. The background is this; you may know that the European Commission has been in conflict with the Polish government for many months over changes it has made to its judicial system, which gravely threaten the rule of law. For instance, a system of compulsory retirement and future appointments by a newly composed National Council for the Judiciary of largely political appointees has been introduced; the present retirement age for all judges of 67 has been reduced to 60 for women and 65 for men; and the integrity and effectiveness of Poland’s constitutional tribunal has been weakened.

The Polish government has snubbed its nose or made shuffling and tiny steps to accommodate the increasing outrage. So, just before Christmas, the European Commission issued the following announcement:

‘Despite repeated efforts, for almost two years, to engage the Polish authorities in a constructive dialogue in the context of the Rule of Law Framework, the Commission has today concluded that there is a clear risk of a serious breach of the rule of law in Poland. The Commission is therefore proposing to the Council to adopt a decision under Article 7(1) of the Treaty on European Union.’ (This could lead to Poland’s voting rights being suspended.)

Now an Irish High Court judge has referred a Polish extradition case - relating to someone wanted for alleged drug trafficking - to the European Court of Justice (CJEU) on the question of whether the recent judicial reforms have been ‘so immense’ that the rule of law in Poland has been systematically damaged.

The judge said that if the requested person were to be returned to Poland, ‘he will be returning to face trial in a jurisdiction where the minister for justice is now the public prosecutor and is entitled to play an active role over the presidents of courts. This has the potential for a chilling effect on those presidents.’ So the CJEU will have to decide whether this provides a sufficient ground to refuse the surrender, on the basis that respect for the rule of law is essential for mutual trust in the operation of the EAW process.

The question of Poland’s interference with its judicial system has therefore been effectively transferred from the political institutions, which have been very cautious in their dealings, and had to accommodate varying viewpoints such as that of authoritarian Hungary, to the EU’s legal institution, which is governed by entirely different considerations. Any ruling in favour of the surrendered person in this case would make it almost impossible for the political institutions not to proceed with suspending Poland’s votes.

The case as a whole is an interesting example of the interwoven nature of the EU’s structure, which we have ourselves come across in the Brexit negotiations. Our government, for instance, would like to negotiate sectoral applications of the single market – indeed, the Law Society’s whole Brexit strategy in respect of lawyers’ practice rights is based on a sectoral exception to withdrawal from the single market. But the EU made clear in the new negotiating guidelines issued by the European Council to the European Commission a few days ago that ‘the four freedoms are indivisible and that there can be no ‘cherry picking’ through participation in the Single Market based on a sector-by-sector approach, which would undermine the integrity and proper functioning of the Single Market’.

We may find out in due course another aspect of this interwoven quality - whether the CJEU believes that it is possible to be in breach of the norms of the rule of law and proper administration of justice and still participate in the EAW process.