The National Public Prosecutor Bogdan Święczkowski sent the order to the district prosecutors in mid-October. They are to hand it over to their subordinated prosecution offices.

In the order, Świączkowski, a close associate of Minister of Justice Zbigniew Ziobro, orders the prosecutors to ‘conduct a thorough analysis of the European Arrest Warrants (EAW) issued by the Dutch authorities for the existence of obligatory grounds for refusing to fulfill them’.

Święczkowski has also ordered the public prosecutors to inform the National Public Prosecutor’s Office about all EAWs from the Kingdom of the Netherlands and requires them to report on the actions they are taking in these cases. In particular, the prosecutors need to assess the EAW in terms of the independence and impartiality of the Dutch judiciary.

“As the Netherlands does to Poland, so Poland does to the Netherlands”

In the letter sent to the regional public prosecutor’s offices, Święczkowski is not hiding the fact that his order is a retaliation for the decision of the court in Amsterdam, which suspended the execution of EAWs from Poland regarding the extradition of Polish citizens on 31 July 2020.

The court in Amsterdam suspended such cases because it referred questions for a preliminary ruling to the CJEU about an EAW regarding a Pole suspected of being a drug courier. The questions apply to whether people suspected of having committed crimes can be extradited to Poland under an EAW if in doubt about the independence of Polish courts. Because there are concerns about whether they can count on a fair trial.

Święczkowski believes the suspension of all EAWs from Poland by the Dutch court for this reason constitutes a breach of European law and may be a way of circumventing Article 7 of the treaty on European Union. This article refers to the breach of the values of the EU by a Member State and provides for the procedure of analysing the breach of these values. According to Święczkowski, the Netherlands would be able to suspend the consideration of a Polish EAW, but only after these procedures end and after Poland is found to have seriously breached EU values. Meanwhile, this has not happened. Therefore, he considers that the principle of the mutual recognition of judgments by EU Member States is still applicable.

Święczkowski reiterates that an EAW is based on ‘a high degree of trust in relations between Member States, which is manifested in the minimization of the grounds for refusal’. ‘In the situation that has arisen, given the failure of the authorities of the Kingdom of the Netherlands to respect the principle of mutual trust regarding matters related to EAWs issued by Polish courts, we need to proceed as specified in the introduction,’ Bogdan Święczkowski instructs the public prosecutors.

What are the public prosecutors to assess?

It arises from the National Prosecutor’s letter that the prosecutors are to investigate all premises that could constitute grounds for refusing to implement Dutch EAWs.

These are referred to in Article 607p, paragraph 1 of the Criminal Procedures Code: ‘The execution of a European warrant shall be refused if:

• in the case of the jurisdiction of Polish criminal courts, the crime to which the European arrest warrant applies is subject to remission through an amnesty;
• a final judgment has been issued with respect to the person being prosecuted in another state for the same deeds and, in the event of a conviction for the same deeds, the person being prosecuted is serving or has served a sentence or the sentence cannot be enforced according to the law of the state in which the conviction was made;
• a final decision has been made to transfer the person being prosecuted to another European Union Member State;
• the person to whom the European warrant applies is not criminally liable under Polish law for the deeds constituting the grounds of the European arrest warrant because of his age;
• this would breach human and civil rights and freedoms;
• the order is issued for a non-violent crime for political reasons’.

In turn, the second paragraph of this provision states that ‘if the European arrest warrant is issued with respect to the person being prosecuted, who is a Polish citizen, the warrant may be executed on condition that the deed to which the European arrest warrant applies was not committed in Poland or on a Polish ship or aircraft and would constitute a crime under the law of the Republic of Poland or would constitute a crime under the law of the Republic of Poland if committed in Poland, both at the time that it is committed and at the time of receipt of the European warrant.’

Święczkowski states that Article 607s, paragraph 1 of the Criminal Procedures Code needs to be applied, in particular: ‘A European arrest warrant issued for the purpose of enforcing a sentence of imprisonment or a measure involving the deprivation of freedom of the person being prosecuted, who is a Polish citizen or who is taking advantage of the right of asylum in Poland is not enforceable if Poland does not agree to surrender him’.

Furthermore, the National Public Prosecutor expects that the premises for refusal will be examined for whether the people being prosecuted by the Netherlands will be able to count on a trial there before an independent and impartial court.

How can Dutch EAWs be blocked?

It is not without reason that the National Public Prosecutor is ordering the assessment of the independence of Dutch courts, because the Regional Court in Warsaw recently refused to extradite a Dutch couple who fled to Poland with their child for this reason. They did so because their child was placed in a foster home in the Netherlands. Meanwhile, while refusing to execute the EAW, the court in Warsaw accused the Dutch judiciary of a lack of independence and a potential threat of euthanasia to the child if he were to return to his country. This judgment was also passed in retaliation for the suspension of Polish requests by the court in Amsterdam.

Prosecutors can fulfil Bogdan Święczkowski’s order, but they do not have to. However, there will be disciplinary cases for those who are unwilling to do so.

We asked one of the experienced prosecutors for a commentary:

‘The principle of reciprocity in recognizing court decisions and EAWs is not about retaliating. The examination of EAWs is not diplomacy that enables retaliatory steps to be taken. There are no reasons for undermining the independence of the Dutch courts. Święczkowski’s correspondence is rather an expression of a political game, a manifesto.

However, I would like to reiterate that it is not the public prosecutor who issues the judgment on the EAW, but the court. The prosecutor appears in such cases and can take a stance. But the decision rests with the court,’ the public prosecutor says.

This is confirmed by attorney Wojciech Wiza, whose law firm in Poznań represents clients in EAW cases. ‘Applications are sent from abroad to the prosecutor’s offices which have jurisdiction over the place where the person being prosecuted is staying. The public prosecutor then sends the application to the regional court with jurisdiction as a representative of the state issuing the EAW. He can also take a stance on this. So far, I have not witnessed the Polish prosecutor’s office blocking the transfer of the EAW to the court to date,’ attorney Wiza comments.

The EAW is mainly examined by Judge Dariusz Łubowski at the Regional Court in Warsaw. He has been adjudicating since 1993. He has been the head of the international crime section of the Regional Court in Warsaw since August 2018 and, since January 2019, he has also been the international crime and human rights coordinator at that court. He took on this function after the previous coordinating judge and head of the section moved to the Court of Appeal in Warsaw.

‘When the Judge was being appointed to this position, the president of the court took into account his outstanding knowledge and extensive experience in the international aspects of criminal law, as well as his fluency in foreign languages, including German, English, French and Russian,’ wrote the press office of Warsaw’s regional court in response to our questions. And indeed the judge has such experience. It was he who refused to extradite a couple from the Netherlands who had fled to Poland with their child. Or was this a retaliation against the Kingdom of the Netherlands or was he guided by a conservative view?

The Regional Prosecutor’s Office in Warsaw also requested a refusal to extradite the couple. And this is precisely what Święczkowski wants. Although the court issues the decision, the prosecutor’s office can boycott Dutch EAWs in retaliation.