Last month, a judge on Ireland's High Court asked the Court of Justice of the European Union for a preliminary ruling on a question about the possibility of a refusal to extradite a person to Poland under the European Arrest Warrant (EAW) procedure.

According to the Irish court, the recent legislative reforms pressed by the Polish government may limit the independence of the judiciary to such an extent that the suspect can be deprived of an ability to fully exercise his right to a fair trial.

The European arrest warrant

The European arrest warrant (EAW) procedure is regulated by Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between member states. This system is based on the principle of mutual recognition.

According to the above principle, a warrant for the arrest and surrender of a designated person issued by a court of a member state should be recognised and enforced in the other EU member states.

However, even the Recitals of the Decision provide that it "respects fundamental rights and observes the principles recognised by Article 6 of the Treaty on European Union and reflected in the Charter of Fundamental Rights of the European Union, in particular, Chapter VI thereof."

The CJEU and the EAW

The Court of Justice of the European Union (CJEU) has already referred to cases similar to the one of the Polish national facing extradition in Ireland in its jurisprudence, e.g. in the Aranyosi and Căldăraru case.

In Aranyosi, a German court requested a preliminary ruling on the question how to handle an extradition request in a situation where conditions at penitentiary facilities in a country issuing an EAW violate human rights. In this particular case, the problem was the overpopulation of Hungarian prisons, which was a phenomenon discussed in a number of ECtHR judgments.

The CJEU ruled that given the presence of reliable, specific and properly updated evidence of systemic deficiencies in respect of detention conditions in the member state issuing an EAW, the executing judicial authority should precisely determine whether there are substantial grounds to believe that an individual named in an EAW may be exposed to a real risk of inhuman or degrading treatment.

To that end, the executing judicial authority should postpone its decision on the surrender of the person and request that supplementary information be provided by the issuing judicial authority within a specified time limit. Ultimately, if the existence of that risk cannot be discounted within a reasonable time, the executing judicial authority must decide whether the surrender procedure should be brought to an end.

Independence of the courts

So far, the CJEU has not expressed a view on the possibility of refusing the extradition of a person named in an EAW because of attacks against the independence of courts and judges in the issuing state.

On several occasions, however, the court has emphasized the significance of the right to access an independent court; this was done most recently in the judgment entered in the case of Associação Sindical dos Juízes Portugueses v. Tribunal de Contas.

In this decision, the CJEU ruled that the principle of effective judicial protection of individuals’ rights was a general principle of EU law. According to the CJEU's ruling in Associação, the existence of an effective judicial review procedure is an inherent characteristic of a state ruled by law.

All member states must ensure, the ruling held, that their judicial bodies meet certain requirements such as independence.