The Kingdom of the Netherlands does not implement the CJEU judgment

Rechtbank Amsterdam suspended the surrender of a 33-year-old Polish citizen suspected of trafficking and importing drugs to Poland. This decision contradicts the judgment of the Court of Justice of the European Union of 17th December 2020. The CJEU indicated that the existence of information proving systemic or general irregularities in the scope of the independence of the judiciary in Poland or the deepening of these irregularities does not constitute in itself substantial grounds for refusal of execution EAW issued by Polish judicial authorities.

The CJEU indicated that Polish judgments are covered by the principle of “mutual recognition and mutual trust” within the EU. An interpretation to the contrary would mean that no court of that Member State could any longer be regarded as a ‘court or tribunal’ for the purposes of the application of other provisions of EU law, in particular Article 267 TFEU.

Despite this, on 10th February 2021, Rechtbank Amsterdam refused to execute the European Arrest Warrant issued by a Polish court, indicating that Polish judges who would adjudicate in a criminal case would not be able to do so independently due to the risk of disciplinary proceedings. Rechtbank Amsterdam mentioned that disciplinary proceedings are pending against two judges of the District Court in Poznań. This poses a threat to the proper hearing of the case, as disciplinary cases are examined by the Disciplinary Chamber of the Supreme Court. Independence and impartiality of thic Chamber are not guaranteed. It was also indicated that the Disciplinary Chamber of the Supreme Court is not a court in accordance with the resolution of some judges of the Supreme Court of 23 January 2020. The aforesaid resolution was found by the Constitutional Tribunal judgment of 20th April 2020 inconsistent with the Polish Constitution. The Tribunal ruled that the resolution was inconsistent with art. 179 of the Constitution, as it undermines the final nature of this provision in the form of the effective appointment of a judge by the President at the request of the National Council of the Judiciary. The act of appointing a judge means his authorization to issue judgments on behalf of the Republic of Poland. In this case, it does not matter whether the lower-level act directly states that a judge of a given category cannot adjudicate at all or cannot adjudicate in generally defined cases, which significantly reduces the effect provided for in Art. 179 of the Constitution. In the opinion of the Tribunal, the resolution is inconsistent with art. 144 sec. 3 point 17 of the Constitution, as it cannot be reconciled with the essence of the President’s prerogative to appoint judges. The President’s prerogative is not subject to any control. It cannot be the subject of any limitation or any narrowing interpretation made in the content of a statutory normative act.

The Amsterdam court also added that the execution of the EAW was under political discussion. This argument is at least surprising. The implementation of the measures issued by the Polish court must be of interest to the Polish authorities which care for the proper functioning of the State. Rechtbank Amsterdam pointed out that the letter of the National Prosecutor’s Office ordered prosecutors in Poland to conduct a specific analysis of EAWs issued by the Dutch authorities in order to establish the reasons for refusing to surrender the wanted persons to the Netherlands. The National Public Prosecutor, acting for the good of the Polish judiciary, is obliged to take all measures aimed at protecting the stability of the work of Polish courts, in particular with regard to the enforcement of criminal sentences.

As a result, it was concluded that the systemic deficiencies in Poland would have a real impact on the court trial of the wanted person, and therefore a fair criminal trial before an independent court cannot be guaranteed.
The case is surprising because the Dutch court does not execute the CJEU judgment of 17th December 2020.

It follows from the CJEU’s judgment that the Rechtbank Amsterdam should make its own assessment whether any irregularities may affect the courts of that Member State, which have jurisdiction over the proceedings against the prosecuted person. The Dutch court made an independent assessment in this respect, pointing to the disciplinary proceedings conducted against two judges of the District Court in Poznań (point 5.3.7 of the judgment of the Rechtbank Amsterdam).

Moreover, the Rechtbank Amsterdam was obliged to assess whether any possible irregularities concerning the competent courts in the light of the personal situation of the requested person as well as the nature of the offense for which he or she is prosecuted and the factual context of the accusation, taking into account the information provided by the issuing Member State pursuant to Art. 15 sec. 2 of Framework Decision 2002/584, constitute serious and proven grounds for considering that, in the event of his transfer to the requesting State, that person would run the risk of breaching the fundamental right to a fair trial. The Rechtbank Amsterdam failed to make such assessment and thus – in the opinion of the Ministry of Justice – it did not comply with the CJEU judgment.