Extradition & Dodgy Polish Justice

This is HOT off the press, off the Twitter timeline! (At least for those of you out there reading not long after the date/time of this article’s posting.) And it’s big: it’s a major ruling just out from the European Court of Justice regarding the EU’s internal system of mutual criminal-suspect extradition.

If the reader has been paying attention at all to EU affairs (certainly to this Twitter-feed and associated blog), s/he will be aware of the ongoing struggle between the EU and the government of Poland. This regards several changes which that particular regime (composed of of one party only, so-called PiS or “Law and Justice”) instituted starting shortly after coming to power in October 2015 elections. Among such authoritarian measures in the eyes of the EU have been those regarding nomination and mandatory retirement of national judges, which subject the courts to much too much influence from government officials.

Unfortunately, all that has resulted so far between the EU and Poland is stalemate, with neither side inclined to back down. It’s also true that the EU Commission instituted a so-called “Article 7” procedure against Poland, which could eventually strip that country of its vote in EU matters (except that the Hungarian government has made clear its intention to veto any such development). And the Commission has sued the Polish government at the European Court of Justice, but getting any resolution out of that also takes a long time.

Ireland: We Won’t Extradite!

Last March, however, a monkey-wrench was thrown into the EU-Poland confrontation from an unexpected source: Ireland High Court Judge Ms. Justice Aileen Donnelly. The Irish authorities had apprehended one Artur Celmer, a Polish citizen wanted back there on suspicion of various drug-trafficking charges, and Judge Donnelly was handed the task of supervising his extradition to Poland in accordance with the EU’s system for that (the “European Arrest Warrant” or EAW).

“But wait a minute,” Judge Donnelly thought to herself: “Can we trust Polish justice?” Naturally, she was aware of the Commission’s charges about the courts there, namely that they did not enjoy true judicial independence as was supposed to be standard throughout the European Union. In light of that, she was not sure; so she put the extradition (and Celmer himself) on ice and instead initiated a quite standard procedure within the EU whereby a national court asks the ECJ to provide guidance on a complicated and/or disputed aspect of EU law. That this point would be disputed was beyond question; for one, the Polish government was furious that what should have been a bog-standard extradition request was being held up for this seemingly insulting reason. (Judge Donnelly is also a lesbian and married to a woman; unfortunately, much of the government-dominated Polish press was quick to seize on this personal information to slander her.)

The news today is that the ECJ has now ruled – and ruled that, indeed, such concerns about the lack of due process within the judicial system of a member-state requesting extradition can constitute grounds for refusing an EAW. Apparently the initiation of an Article 7 procedure against Poland, in part due to its problems with judicial independence, was an important element (if not absolutely necessary) of the ECJ’s decision, which imposes upon courts contemplating EAWs a dual requirement: 1) To determine whether the requesting national justice system presents a possible risk to the accused’s rights and then 2) To decide whether such a risk applies in the individual case. To that end, courts will likely need to regularly ask for information from the requesting courts about their national systems of justice.

A Sad State of Affairs …

This whole affair is unfortunate, among other reasons because, after all, this Artur Celmer is accused of serious drug-crimes back in his native Poland and so, all other things being equal, should expeditiously be sent back there to answer for them. Ideally, European Arrest Warrants should really be almost automatic and carried out expeditiously, as a reflection of the common values and trust among member-states that is supposed to mark the European Union.

Still, such “automatic-ness” of EAWs had already been diluted recently by the partial rejection of the one issued by the Spanish authorities to Germany for ex-Catalonia President Carles Puigdemont (although you can make a case that the very different grounds behind that rejection were valid). But it’s quite possible to find a bright side to today’s ECJ ruling on inter-state extradition, because the fundamental irregularity here is after all Poland’s refusal to abide by EU standards for its court system. In that domain (and, surely, in several others, subjects for another day) Poland has distanced itself from the EU; the Commission is trying to use the means available through the treaties to force it back. If the Polish government wants to act in that manner, why shouldn’t it have to put up with increasing uncertainty as to whether fellow member-states are willing to extradite criminals for prosecution by its skewed criminal justice system?*

* I can hear the counter-argument out there already: “Ah, then Poland plays the same game by slow-walking or refusing extradition of suspects that it holds to other EU member-states!” Firstly, that may not be a good idea in view of Poland’s worsening relations with much of the rest of the EU. Secondly, for that Poland will yet again be taken to the ECJ – where it will, again, ultimately lose. If at that point it still wants to refuse no less than an ECJ order to extradite a criminal suspect, well, then the resulting fines imposed on its government will be the least of its worries.

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