Lawyer Monthly Magazine - April 2019 Edition

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 (eg. 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 17th 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 7th January 2019, ruled that extradition to “ THESE RECENT DEVELOPMENTS IN EXTRADITION LAW MUST, HOWEVER, BE UNDERSTOOD AGAINST THE BACKDROP OF POLAND’S SUSPENSION PURSUANT TO ARTICLE 7. ” 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 (eg. 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. 1 (Mutual Trust as a Term of art in EU Criminal Law: Revealing Its Hybrid Character 2016; Auke Willems) These recent developments in extradition law must, however, be understood against the backdropof 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. LM APR 2019 57 Thought Leader www. lawyer-monthly .com