Lawyer Monthly Magazine - April 2019 Edition

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 20th 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 EUROPEAN ARREST WARRANTS Aleksandra Kowalik, Kancelaria Adwockaka Kowalik 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”. 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 Aleksandra is dual quali- fied as a solicitor of England and Wales and Polish bar- rister from the firm of Kance- laria Adwockaka Kowalik in Swiecie, Poland but has been practising in the UK since 2013 and joined Justi- tia 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 crimi- nal co-operation and mutual assistance, deportation and extradition under the Euro- pean Arrest Warrant, princi- pally between the UK and Poland, acting mainly for Pol- ish citizens who are resident in the UK. In this respect, her practice also extends to asy- lum and unlawful detention, which has become particu- larly relevant since the Brexit vote in 2016. ALEKSANDRA KOWALIK HAS THE MUTUAL TRUST BETWEEN THE UK AND POLAND EVAPORATED? Speaking to our trusted bilateral Polish lawyer, Lawyer Monthly gains insight into the mutual trust between Poland and the UK in European Arrest Warrant (EAW) cases after Article 7, alongside other actions against Poland, were triggered. 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. London Office in Ealing: Aurora House, 71- 75 Uxbridge Road, London, W55SL | aleksandrakowalik@op.pl | 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 APR 2019 56 Thought Leader www. lawyer-monthly .com