Dutch judges immediately surrender suspects to Poland, until the European Court of Justice decides whether this is still justified. The Amsterdam court ruled on Friday that Polish courts and tribunals are no longer independent, since the conservative-nationalist government has politicized disciplinary law and the appointment of judges there.
The International Legal Aid Chamber in Amsterdam has put so-called pre-judicial questions to the Court in Luxembourg. That should now determine whether the fundamental rights of European citizens are violated after surrender to a court in a country where national law “no longer guarantees the independence of that court”. The consequences can be enormous.
1 What is going on in Poland?
Since the Law and Justice (PiS) party came to power in Poland in 2015, it has encapsulated the judiciary. The Constitutional Court is illegally filled with supporters. Parliament gains control of the Council for the Judiciary, which deals with the appointments and promotions of judges. Developments accelerated in the past year: disciplinary measures against judges are tightened and the Supreme Court has a chairman who is personally friends with the Minister of Justice. The European Commission’s objections, half-hearted procedures and lawsuits have little effect.
Judges have doubts: whether or not to surrender suspects to Poland?
2 What makes the action of the court special?
Judges in other European countries are deeply concerned about the breakdown of the Polish rule of law. In several Member States, requests to transfer suspects have been suspended for fear that they will not receive a fair trial in Poland. The rule established by the EU Court in 2018 is that surrender should only be refused if an individual suspect is ‘in real danger that his fundamental right to a fair trial will be violated’. But the legal aid chamber in Amsterdam, the body that deals with all surrenders from the Netherlands, is the first to argue that each Polish suspect at risk due to ‘structural and fundamental deficiencies’ in the Polish rule of law. The urgent procedure in Luxembourg must provide a definite answer within three to four months.
3 What are the practical consequences?
Maciej L., the Pool suspected of drug trafficking, whose case prompted the involvement of the EU Court, will remain in the Netherlands for the time being. In addition, the Legal Aid Chamber will not hand over other suspects in the coming months. If the Court in Luxembourg agrees with the court that no one can guarantee an independent trial in Poland anymore, the consequences will be far-reaching. Surrenders within the EU – unlike renditions outside it – are based on blind trust between judges and legal systems. Failure to do so will have consequences not only for the hundreds of suspects who are now surrendered to Poland each year, but for the entire EU structure. When Polish suspects in another Member State can escape their sentence, the system of open borders collapses. And if it is formally no longer counted on the autonomy of Polish judges, this also has consequences outside criminal law: for business disputes and guardianship cases. Due to the lab-busting approach of Poland by the political institutions of the EU, the Court now has to make the fundamental decision as to whether the country still fits into the European legal order.
A version of this article also appeared in the NRC Handelsblad of 1 August 2020
A version of this article also appeared in nrc.next dated August 1, 2020