A extremely talked about situation in just the EU is no matter whether the extradition of individuals to Poland is permissible under EU Law. In December 2017, the European Commission submitted a reasoned proposal activating the Short article 7 of the Treaty on the European Union (TEU) system to decide no matter whether there is a authentic possibility of a major breach by Poland of the rule of law. The query arose no matter whether the existence of a authentic possibility to a breach of the rule of law in Poland could be relied on as grounds to close a European Arrest Warrant (EAW) treatment in which the issuing point out is Poland. 

Just lately, the District Court docket of Amsterdam ruled that a authentic possibility of a breach of the correct to a reasonable trial could exist if a particular person would be extradited to Poland, due to the fact there is uncertainty on the query no matter whether the judiciary in Poland is impartial. This decision is based on the authorized framework provided by the jurisprudence of the Court docket of Justice of the European Union (CJEU). It is questionable no matter whether other Member States will adopt the same reasoning due to the fact, regrettably, the jurisprudence of the CJEU and the European Court docket on Human Legal rights (ECtHR) present unique exams for the software of the correct to a reasonable trial in the decision to (not) surrender a particular person based on a EAW.

In June 2018, the CJEU held that the executing point out of the EAW must not surrender an unique if there are systemic or generalised deficiencies relating to the independence of the judiciary which constitute a authentic possibility of an infringement of the correct to a reasonable trial in the certain case (LM Judgment). This take a look at deviates from the scenario-law of the ECtHR which employs the ‘real possibility of a flagrant denial of justice’ take a look at. The CJEU did not present factors for its deviation from the ECtHR’s scenario-law. This is really worth noting due to the fact the correct to a reasonable trial, provided in the Constitution of Fundamental Legal rights of the European Union, has the same this means and scope as the correct to a reasonable trial laid down by the European Convention on Human Legal rights.

The ECtHR can take a unique approach, due to the fact it ruled that a Member Condition can refuse the execution of the EAW in accordance with the ECtHR’s take a look at of ‘a flagrant denial of justice’ (Pirozzi v. Belgium). This take a look at appears extra in line with the fundamental ideas of EU Law than the CJEU’s take a look at, due to the fact the constraints to the execution of the EAW must be interpreted strictly. By adopting the take a look at of ‘a flagrant denial of justice’, the constraints to the execution of the EAW are stringent and coherent with the correct to a reasonable trial. A-G Tanchev’s Viewpoint famous that a authentic possibility of a breach of the correct to a reasonable trial would not be a sufficient floor to not give impact to a EAW, especially using into account the ideas of mutual have confidence in and mutual recognition which provides for an productive judicial cooperation concerning Member States.

Inspite of the foregoing, the CJEU took one more approach. The CJEU’s LM Judgment provides room for Member States to refuse a EAW extra typically than an extradition ask for from a third point out, due to the fact the stricter take a look at of the ECtHR applies to extradition requests from third states. For that reason, the LM judgment, on the one particular hand, provides for robust motion in opposition to Member States who do not adhere to the rule of law, on the other hand, it provides for a degrading impact on the software of the principle of mutual recognition on which the EAW is based.

Yet, the impact of these seemingly divergent take a look at will depend on how the pursuing concerns are answered by the Member States:

    • Does all the systemic or standard deficiencies relating to the independence of the judiciary constitute a flagrant denial of justice and
    • Does the authentic possibility of a breach of the correct to a reasonable trial take a look at adopted by the CJEU apply to each individual element of the correct to a reasonable trial?

If the first query is answered negatively and/or the next in the affirmative by one particular or extra Member States, the divergence could guide to dissimilarities (a) in the software of the correct to a reasonable trial concerning the Member States and (b) concerning EAW and non-EAW extradition scenarios in a way which does not encourage the productive judicial cooperation concerning Member States.