Has the Mutual Trust Between the UK and Poland Evaporated?

 Insightful as ever, Aleksandra Kowalik takes us through whether this mutual trust is now being tested and the impact the implantation of Article 7 has had.

There is no doubt that international criminal justice cooperation demands a solid basis of mutual trust which is reinforced within the legal system of each state jurisdiction, and which depends upon compliance with fundamental norms and elemental principles that are indivisible.

“Development of the EU policy often labelled ‘EU criminal law’ took a flight in the late 90’s when mutual recognition was introduced as the core governance principle in the Area of Freedom, Security and Justice (AFSJ), the EU’s version of a judicial space launched with the entry into force of the Treaty of Amsterdam. In essence, mutual recognition requires Member States to give full recognition to judicial decision taken in the other jurisdictions across the EU. Mutual recognition, in turn, functions on a presumption of mutual trust – the logic is that the extraterritoriality of judicial decisions created by mutual recognition, will be only accepted if there is a sufficiently high level of mutual trust between Member States. Mutual trust can, therefore, be regarded as the principle behind the principle.”[1]

Nowhere amongst EU Member States is that trust more evident and essential than when dealing with EAW applications and proceedings. There is a presumptive belief that each justice system will meet those exacting standards with respect to guaranteeing the citizen’s basic rights. That presumption has now become elevated almost to the status of being evidence in itself against a Requested Person and undoubtedly limits his right to bring a challenge on the basis that such trust might be misplaced.

Section 10 of the foreword of the Framework Decision on the European Arrest Warrant provides as follows “The mechanism of the European arrest warrant is based on a high level of confidence between Member States. Its implementation may be suspended only in the event of a serious and persistent breach by one of the Member States of the principles set out in Article 6(1) of the Treaty on European Union, determined by the Council pursuant to Article 7(1) of the said Treaty with the consequences set out in Article 7(2) thereof”.

So how is that presumption of mutual trust to be monitored and tested? By what criteria is the quality of such trust to be gauged such that each party to EAW proceedings may be satisfied and reassured that fundamental human rights are both protected and upheld?

Recently, these very questions were raised in relation to Poland, when on the 20^th December 2017 the European Commission took the unprecedented step of triggering Article 7 of the EU Treaty against that member state. Such action invoked disciplinary measures the express purpose of which was to safeguard Polish judicial independence.

With respect to the Polish Judicial Authority, it raised the issue of what true value could be ascribed to the information provided by them in their European Arrest Warrants and any supplementary information when responding to an executing State’s request.

Article 15 of the Framework Decision, headed ‘Surrender decision’, states at paragraph 2:

‘If the executing judicial authority finds the information communicated by the issuing Member State to be insufficient to allow it to decide on surrender, it shall request that the necessary supplementary information, in particular with respect to Articles 3 to 5 and Article 8, be furnished as a matter of urgency and may fix a time limit for the receipt thereof, taking into account the need to observe the time limits set in Article 17.’

Such “supplementary information” is invariably provided to the requesting state in the form of an official response containing a series of factual assertions. But it is rarely supported by any actual evidence or even by certified translations of documentary exhibits purporting to contain the requested additional information. Those assertions are treated as facts in themselves without further proof, therefore being the necessary corollary of a system operated on the basis of mutual trust and no more.

In Poland, the systematic political changes effected from December 2015 provoked widespread discussion leading eventually to the activation of international legal intervention through Article 7. The charge was that the emasculation of the Polish judiciary had, for the first time, cast doubt on whether its criminal justice system was able to guarantee fairness.

In consequence of international intervention, reforms were introduced to a range of Polish legal procedures and new cases (e.g. Celmer and Lis & others) citing “flagrant denial” of justice began to change the calculus for Polish lawyers. But it did not end there: the membership of the KRS (Krajowa Rada Sadownictwa- Polish National Judicial Council) within the European Networks of Councils for the Judiciary [ENCJ] was suspended on 17^th September 2018. The vast majority of the ENCJ’s 100 members supported the suspension, although 9 of the members abstained and unsurprisingly all six Polish members voted against.

The central requirement for ENCJ membership by an individual member state is that its judiciary must remain independent from the executive and legislature. Such was the level of concern within the ENCJ about the failure of the Polish state to maintain this fundamental separation of powers that the unprecedented step to suspend was regarded as unavoidable. Following this extraordinary development, the ENCJ determined that one of its key strategic objectives for 2018- 2021 was to be a review of the operation of the principle of mutual trust amongst its constituent and various national judicial systems including, of course, the vexed example of Poland itself.

Confidence in the standards of fairness applied in the Polish judicial system was further cast into doubt following a EAW challenge mounted before The Higher Regional Court of Karlsruhe which, on 7^th January 2019, ruled that extradition to Poland may violate the right to a fair trial, an element that remains a sine qua non of any modern criminal justice system.

The question, therefore, arises in relation to Poland: is it still reasonable and safe to continue to trust the contents of supplementary information provided by the Polish Judicial Authority, in response to formal requests from executing states?

The importance of supplementary information cannot be overstated in EAW proceedings. It may affect the European Arrest Warrant’s validity and be determinative of the issues raised on behalf of the Requested Person in resisting extradition (e.g. passage of time or alleged fugitive status).

The case of Alexander v Public Prosecutor’s Office, Marseilles; Di Benedetto v Court of Palermo, Italy [2017] EWHC 1392 drew even more attention to the potential significance of supplementary information by providing clarification that ‘further information’ may be necessary and admissible to fill any lacunae in deficient warrants so as to establish its validity. By so doing, the ability of a Requested Person to challenge a warrant in proceedings under section 2 of the Extradition Act 2003 is now very much more limited.

These recent developments in extradition law must, however, be understood against the backdrop of Poland’s suspension pursuant to Article 7. How is the increasing use of further information in Polish cases to be reconciled with the damage to confidence in Poland’s ability to adhere to the requirements of the mutual trust scheme? More particularly, given that Article 15 (which defines further information that is deemed to be binding) is predicated on an assumption that individual member states are upholding minimum standards in their respective justice systems and protecting the human rights of their citizens, what value and reliance may safely be placed on supplementary information emanating from the Polish Judicial Authority?

No member state can profess to operate a perfect system in which fairness and rights are unfailingly guaranteed. It is only when the standards of legal probity and integrity operated by an individual state fall so far below the minimum threshold applied across all other states, that the extraordinary step of engaging Article 7 becomes necessary and unavoidable. At the very least, the presumption of mutual trust in dealing with EAW cases involving Poland must now be a presumption of doubt.

[1] (Mutual Trust as a Term of art in EU Criminal Law: Revealing Its Hybrid Character 2016; Auke Willems)

Aleksandra Kowalik

London Office in Ealing

Aurora House

71- 75 Uxbridge Road

London

W55SL

www.akowalik.com

(Main address for Briefs)

Fox Court

14 Gray’s Inn Road

London WC1X 8HN

​DX 423 LONDON/CHANCERY LANE

01322 333504

info@justitiachambers.co.uk

www.justitiachambers.co.uk

Aleksandra is dual qualified as a solicitor of England and Wales and Polish barrister from the firm of Kancelaria Adwockaka Kowalik in Swiecie, Poland but has been practising in the UK since 2013 and joined Justitia as an Associate in April 2017.  She was called to the Bar in Poland in 2009 and is a member of the Regional Bar Council in Bydgoszcz.

Aleksandra specialises in criminal law and procedure including international criminal co-operation and mutual assistance, deportation and extradition under the European Arrest Warrant, principally between the UK and Poland, acting mainly for Polish citizens who are resident in the UK. In this respect, her practice also extends to asylum and unlawful detention, which has become particularly relevant since the Brexit vote in 2016.