On 21 September 2020, Dariusz Łubowski, judge of the District Court in Warsaw, ruled that it is unacceptable to extradite Ekaterina and Conrad Hertog from Poland to the Netherlands under the European Arrest Warrant.

The Court in Zeeland-West-Brabant submitted the request on 26 June, as it wants to prosecute them. This is a delicate family matter regarding care and parental rights with regard to a child with autism.

In the justification of the decision, Judge Łubowski first cited moral arguments. He extensively criticized the admissibility of euthanasia in the Netherlands. Without mentioning specific premises, he stated that if the boy’s parents are deprived of their parental rights, which is likely, he may be subject to euthanasia in the Netherlands after he turns twelve.

Judge Łubowski then challenged the independence of the courts in the Netherlands and fiercely criticized the cooperation of the Regional Court in Amsterdam with the Regional Court in Warsaw, accusing the Dutch court and prosecutor’s office of obstruction in the cases of the European Arrest Warrant.

This is an obvious reaction to the decision of the Regional Court in Amsterdam, which referred two questions for a preliminary ruling to the Court of Justice of the EU and suspended the execution of European Arrest Warrants from the Netherlands to Poland until the receipt of an answer. It was the first such systemic court decision in the EU Member States.

The actions of the Dutch court arise from pragmatic reasons: the need to assure legal protection for EU citizens and the right to a fair trial, which EU law guarantees. They also arise from the concern that the erosion of judicial independence, the rule of law, and democracy will spread like a toxin throughout EU law.

The political criticism of the government and courts in the Netherlands by Judge Łubowski in the justification of the decision extends far beyond the normal role of a judge who speaks about the subject matter of the case under consideration in his decisions.

Philippic against the Dutch courts and the government of the Netherlands

Dariusz Łubowski has been a judge since 1995 and has been in the criminal section of the Regional Court in Warsaw since 2010. He has extensive professional experience in matters related to international criminal law and international cooperation. He was seconded to the Ministry of Justice in 1997–2013.

Judge Łubowski has been managing the international criminal law section for international relations since 2018 and he has been coordinating the section responsible for international cooperation and human rights in criminal cases at the Regional Court in Warsaw since 2019.

As manager of the section, in principle, he decides on requests regarding the European Arrest Warrant.

He has issued two decisions regarding the inadmissibility of an EAW from Poland to the Netherlands with respect to the boy’s mother and father (case ref.: VIII Kop 180/20 and VIII Kop 181/200).

In the justification of the decisions, Judge Łubowski refers to ‘serious doubts about the independence of the Dutch judicial authorities issuing European Arrest Warrants and the suspicion that they are guided by politically or ideologically motivated reasons.’

He assessed that the ‘obstruction’ takes place according to ‘a fixed scenario by two Dutch authorities, undoubtedly operating together and in concert, i.e. Openbaar Ministerie (the equivalent of the prosecutor’s office) and the Regional Court in Amsterdam (which has the competence in the Netherlands for foreign legal transactions).’

He made the allegation that the Netherlands does not send full decisions to Warsaw, but purely the questions asked by the Regional Court in Amsterdam, which is the only court in the Netherlands to consider EAW cases. ‘Therefore, the arguments of the Dutch court regarding any possible doubts as to the independence of Polish judges are unknown’.

Judge Łubowski also specifies the asymmetry of efforts: the Dutch court does not translate e-mails into Polish, whereas documents sent by post or fax from the court in Warsaw to the Netherlands are translated into English or Dutch and notarized. He also complains about exchanging e-mails with further questions – and finally silence from the Netherlands in EAW cases. He also expresses doubts as to the involvement of Openbaar Ministerie in the EAW procedure.

However, this was just a prelude to the true philippic. Judge Łubowski accuses the Dutch courts of being politicized and the Dutch authorities of bringing about an increase in international crime – drug trafficking – and hindering its combating. He describes the Dutch drug policy as being pathogenic.

‘It is informally (exclusively from the media) known that absurd allegations are raised with respect to Polish judges in the preliminary ruling procedure (about which the Netherlands additionally did not inform the Regional Court in Warsaw) about the lack of impartiality, which are not supported by any facts or examples of specific cases or judgments.

It should be emphasized that this is taking place primarily with respect to criminals who are being prosecuted for serious drug crimes, which are largely generated by the Netherlands and for which that state is largely responsible.

If the political objective of such conduct by the Dutch authorities, including the Regional Court in Amsterdam, is – even indirectly – to restrict the effective battle by the Polish judiciary and specifically by the Regional Court in Warsaw against the most dangerous international crime, then this objective has been achieved.’

Judge Łubowski accuses the Dutch court of involving itself in a political dispute over the rule of law in Poland, which is being conducted by EU institutions and the governments of the Member States, including the Netherlands.

In his opinion: ‘Such activity completely discredits every court of the European Union Member State as being a body that is independent of the executive. Making the Polish judiciary a hostage of a political game at EU level (to which no Polish court is or can ever become a party) and actually preventing the Polish court from prosecuting the perpetrators of the most serious crimes caused, among other things, by the pathogenic approach of the Netherlands to access to drugs, is highly unprofessional and dishonest, and totally destructive to the legal order of the EU.’

Delicate family affair

The case which Judge Łubowski ruled on applies to delicate family issues. Martin, the son of the Hertogs, has been staying in a diagnostic and care facility in the Netherlands since 2018. In February 2020, the Noord-Holland Court ruled on the restriction of parental care and the placement of the child in a care facility until February 2021.

The Dutch court ruled that ‘if the parents were to continue their parental custody, M.’s development would be under serious threat (…); the parents are educationally unprepared and incapable of bringing up M. properly and are unable to take responsibility for M.’s care and upbringing ( …)’, while the reasons why the boy should be in custody have not passed.

The parents took their son to Poland on 24 June, against the will of the care establishment. They are responsible for abduction under Articles 279 and 282 of the Dutch Criminal Code. This is punishable by imprisonment for up to 9 years.

The parents believe that, during their stay at the care centre, the child’s condition deteriorated and he was undergoing autism therapy. They pointed out that they wanted to ‘assure him of further development and provide him with care in a state that guarantees the observance of family values.’ They applied for asylum in Poland and for the non-acceptance of the decisions of the Dutch courts in Poland.

The judge of the Regional Court decided that he would not extradite the Hertogs to the Netherlands under the EAW, giving moral arguments and assessing that the stay of an autistic child outside the ‘privacy of his home’, especially without his mother, is ‘extremely inhumane and barbaric.’

‘There is even no need to have any specialist psychological or medical knowledge to conclude that every child, especially an autistic child, primarily requires parental love, peace and a sense of security, which can be provided to him by his parents, especially his mother, staying together in the privacy of their home. Such conduct should be considered extremely inhumane and barbaric. Consequently, it should be acknowledged that, in this case, there is a serious, real and immediate concern about the breach by the Dutch authorities of the human rights of spouses H. and their child M., specifically Article 8 of the European Convention on Human Rights’, assessed Judge Łubowski.

We will not give up our child, because they can kill him in the Netherlands

A large proportion of the justification includes an assessment of euthanasia, which is legally permissible in the Netherlands.

‘However, it is horrific that the ability of doctors to kill sick people also applies to the mentally ill, including those suffering from dementia (most frequently in the form of Alzheimer’s disease) and even depression. Meanwhile, a decision may also be made to kill mentally ill children after they turn twelve. These situations are unfortunately not theoretical.

Over 6,000 people are killed by doctors each year in the Netherlands, within the framework of so-called active euthanasia and an unknown number of human lives are taken within the framework of the so-called passive euthanasia (helping sick people commit suicide).

One child was killed within the framework of euthanasia in 2016 and three children were killed in 2017 (no data for the following years). If sick people are lonely (or under the care of the state), in practice, the doctors have the sole right to decide to kill such a sick person’.

The court justified the decision not to extradite the Dutch to the Netherlands under the EAW by the likelihood that their parental rights would be taken away from them through the court, while the child’s condition would deteriorate significantly, which, according to the Polish court, carries a high risk that ‘after turning 12, he may be deprived of his life by doctors without the consent or even knowledge of his parents’.

‘Therefore, the most important issue to be resolved in this case is not only the breach by the Netherlands of a parent’s human rights or the well-being or health of the child, but life – the biological survival of this particular child. Being unable to rule out such a course of events, the Regional Court in Warsaw will not take the life of this child, which is already disadvantaged by fate and by the Dutch authorities, on its conscience,’ Judge Łubowski justified.

The problem with Judge Lubowski’s philippic is the confusion of issues that should be considered separately: the actions of the Dutch government, the statements of the Dutch politicians, the judgments issued by independent Dutch courts and the actions of the EU institutions with respect to the Polish government. As well as the fate of the child with a disability.

Translated by Roman Wojtasz

The text was posted in Polish at OKO.press on 23 September 2020.

We are publishing here statements by Mr. Conrad den Hertog, father of Martin, in reaction to the article.