How independent is Polish judiciary? CJEU to respond to Irish court’s question referred for preliminary ruling

On 1 June 2018, the Court of Justice of the European Union held the hearing in the case triggered by a request for a preliminary ruling submitted by Irish High Court of Dublin.

The question asked by the Irish court concerns a possibility to refuse to extradite a person sought under the European Arrest Warrant (EAW) based on likely violations of principles of the rule of law, including the right to a fair trial. The case concerns a man suspected of being involved in a criminal organisation.

The man sought under an EAW argues that his extradition would violate Article 6 of the ECHR because the latest legislative changes and proposed reforms of the justice system in Poland create the real risk of a flagrant denial of justice. The man also pointed to the arguments made in the European Commission’s request to initiate the Article 7 TEU sanction procedure. The man further argued that the reforms introduced in Poland fundamentally compromised the basis of the mutual trust between judicial authorities issuing and enforcing the EAW.

Irish High Court’s determinations

Relying on the Reasoned Proposal of the European Commission of 20 December 2017, the High Court referred to issues related to the operation of the Constitutional Tribunal such as the President’s failure to appoint judges properly elected by the Sejm as well as doubts as to the independence of the Tribunal and its ability to perform a constitutional review of laws. The High Court, referring to the EC Proposal, also mentioned the lowering of the retirement age of judges of the Supreme Court and common courts and pointed to a new form of judicial review of final and binding judgments, the extraordinary appeal.

The High Court, citing the EC Proposal, indicated that more than ten laws affecting the entire structure of the judicial system in Poland had been adopted over a short period. The common characteristics of all these legislative changes is that the executive or legislative branches have been systematically enabled to interfere significantly with the composition, powers, administration and functioning of judicial authorities and bodies. The legislative changes and their combined effects put at serious risk the independence of courts and judges and the separation of powers in Poland, which are fundamental components of the rule of law.

No judgment was made in conclusion of the hearing on 1 June. The ruling ins this case is expected within a few weeks. The opinion of CJEU Advocate General is to be published on 28 June.