A court in Karlsruhe has decided not to extradite a citizen of Poland and Germany, accused of forging invoices and defrauding a VAT refund, to Poland on the basis of the European Arrest Warrant. The decision in the case Ausl 301 AR 104/19 was handed down on 27 November 2020.

This is the second decision by the Higher National Court in Karlsruhe to suspend the execution of a EAW to Poland, directly motivated by concerns that as a result of changes in the judiciary after 2015, the independence of judges in Poland is under threat, and likewise the fundamental right of EU citizens to a fair trial.

Earlier, in an unprecedented decision on 17 February 2020 in case Ausl 301 AR 95/18, the Karlsruhe court explained that the direct reason for suspending the execution of EAWs from Germany to Poland was the coming into force of the so-called muzzle act. The German court also highlighted the abuses of disciplinary proceedings against judges in Poland and the lack of independence of the Disciplinary Chamber in the Supreme Court. In its opinion, these factors call the independence of courts in Poland into question.

In the second half of 2020, the concerns of the Karlsruhe court not only continued, but also intensified. This is evidenced by its second decision to suspend the execution of a EAW in November.

In this one, the court agrees with the defendant’s argument that due to the systemic irregularities of the judiciary in Poland, he cannot be guaranteed a fair trial.

The man, who has Polish and German citizenship, is also accused of illegal possession of weapons in Germany, money laundering and running an organised criminal group. The public prosecutor’s office in Karlsruhe has been pursuing him since 27 August 2019. He prefers to stand trial in Germany where, as he says, he has been living and working since 2018.

In support of the decision, the court in Karlsruhe extensively discussed the changes to the judiciary in Poland in 2020. It has paid a great deal of attention to the coming into force of the ‘muzzle act’. It has also noted the European Commission’s initiation of proceedings against the Polish government in connection with this law, as well as the reactions of the Polish government.

It also considered the fact that the defendant’s lawyers had been denied access to the case files in Poland.

Ultimately, the court in Karlsruhe judged that the proceedings against the accused could be conducted by courts in Germany.

An excerpt from the decision of the court in Karlsruhe:

Die Bewilligung einer Auslieferung eines deutschen Staatsangehörigen zur Strafverfolgung nach Polen ist zu versagen, wenn das Verfahren gegen diesen auch in Deutschland sachgerecht geführt werden kann, wobei bei der Geführt werden kann, wobei bei der Abwägert eine veneinserven zu Unrecht in bei der Abwägung mit berücksichtigt werden dürfen (Fortführung von OLG Karlsruhe, Beschlüsse vom 10/06/2020 – Ausl 301 AR 34/20 – und vom 17/02/2020 – Ausl 301 AR 156/19).

1. Die Auslieferung des Verfolgten nach Polen zur Strafverfolgung aufgrund des Europäischen Haftbefehls des Bezirksgerichts C./Polen vom 4. Februar 2019 wird für unzulässig erklärt.2. Die Kosten des Verfahrens und die notwendigen Auslagen des Verfolgten fallen der Staatskasse zur Last.

[The approval of the extradition of a German citizen for criminal prosecution to Poland is to be refused if the proceedings against him can also be carried out properly in Germany, whereby the possibility of unjustifiably denied access to files for the defence counsel in Poland and the danger of deficits in the rule of law may be taken into account in the consideration. (Continuation of OLG Karlsruhe, resolutions of 6 October 2020 [Ausl 301 AR 34/20] and 17 February 2020 [Ausl 301 AR 156/19]).

1. The extradition of the accused to Poland for prosecution on the basis of the European Arrest Warrant of the District Court C./Poland dated 4 February 2019 is declared inadmissible.
2. The cost of the proceedings and the necessary expenses of the accused shall be borne by the state treasury.]

The court in Karlsruhe (Baden-Württemberg) is not alone in its opinion. On 12 August 2020, the Higher National Court in Nürnberg (Bavaria) decided to suspend the extradition of a Polish citizen under the EAW due to its doubts as to the independence of the courts in Poland (judgement AuslAR 33/20).

CJEU: Courts in the EU must carry out a two-step test

The court in Karlsruhe decided not to execute the EAW to Poland in this case after implementing a two-step test.

Courts in the EU are obliged to do so on the basis of judgements handed down by the Court of Justice of the European Union.

In 2018, the High Court of Ireland, considering the case of Artur Celmer, a Pole accused of drug smuggling, asked the CJEU whether it could bring a suspect to a court in a country where allegations of systemic violation of judicial independence have been documented.

The Irish court raised such doubts after, for the first time in the history of the EU, in December 2017 the European Commission launched a political procedure under Article 7 of the EU Treaty against a member state, Poland, due to the serious risk that the rule of law would be violated.

In the case of LM (Celmer), the CJEU ruled on 25 July 2018 that if national courts have doubts as to whether they can extradite a suspect to a court in another EU country under the European Arrest Warrant, they must perform the two-step test.

Firstly, on the basis of the available materials, in particular the documents of the European Commission and the Venice Commission of the Council of Europe, they must assess whether there are reasonable doubts that there are threats to judicial independence in the country to which the suspect is to be returned.

If they believe that this is the case, they move on to the second stage of assessment. They check whether, in a given case, the suspect will have a guaranteed right to a fair trial before a court in the country of referral, as understood by EU law.

On 17 December, three weeks after the decision by the court in Karlsruhe, the CJEU issued a judgement in response to the questions referred for a preliminary ruling by the District Court in Amsterdam (regarding the combined cases C354/20 PPU and C412/20 PPU).

The CJEU ruled that reports about the systemic threat to the independence of the judiciary in Poland do not oblige courts in other EU countries to automatically suspend the execution of European Arrest Warrants to Poland.

The Tribunal confirmed that courts deciding to execute the EAW must, in each case examined, assess individually whether the suspect in the country of return will be granted a fair trial within the meaning of EU law.

However, the Tribunal further clarified:

“implementation of a European Arrest Warrant issued by a Polish judicial authority should be refused if, in the light of the personal situation of the person concerned, the nature of the offences to which the warrant relates and the factual context in which it was issued, there are serious and proven grounds to consider that transfer to these authorities will expose the person to a real risk that their right to a fair trial will be violated due to these irregularities.”

The CJEU has expressed its trust in thousands of Polish judges who remain largely independent, although since 2015 the government has been dismantling the systemic guarantees of judicial independence in Poland.

The judgement of 17 December is in line with the CJEU’s previous jurisprudence regarding the execution of EAWs in the context of concerns about the independence of the judiciary and the respect for the right to a fair trial in the EU country to which the accused is to be referred. It supplements the judgement of 25 July 2018 in the case of LM (Celmer), in which the CJEU clarified that the national courts deciding on EAWs must perform the two-step test:

• first, to assess whether there is a systemic threat to the rule of law in the country of reference;
• then, to assess whether the person being sent to that country will be guaranteed a fair trial in the given case.

Translated by Jim Todd. The article was posted in Polish at OKO.press.