In this and other Polish surrender cases, the International Legal Assistance Division earlier ruled that there are systemic shortcomings in the legal order in Poland, as a result of which legislation no longer guarantees the independence of the Polish courts. In relation to this and one other surrender case, the International Legal Assistance Division last year submitted a prejudicial question to the Court of Justice of the European Union to ascertain whether these shortcomings should result in the automatic refusal of Polish surrender requests. The Court answered this question last December negatively and was of the opinion that a surrender request may only be refused if, in the individual case, there are concrete and serious reasons to assume that the right to a fair trial will be infringed.

On 27 January 2021, in a different case  in respect of which prejudicial questions were submitted, the International Legal Assistance Division reach the conclusion that the judgment of the European Court of Justice did not give cause to revise its opinion that there were systemic shortcomings in the Polish legal order (see this press release and ECLI:NL:RBAMS:2021:179). The Court has repeated this consideration in today’s judgment.

As in the case of 27 January, the Court carried out a further investigation to ascertain whether there were concrete and serious reasons to assume that there was a real danger that the fundamental right to a fair trial of the person claimed would be infringed. In the judgment of 27 January, this question was answered negatively and the surrender was permitted. In today’s case, the International Legal Assistance Division has reached the conclusion that the 33-year-old Polish man will incur this risk and that the surrender must therefore be refused.

The Court considered the danger that the courts in Poland that will have to adjudicate the criminal case of the person claimed will not be able to reach a conclusion independently, in part due to the possibility of disciplinary procedures. Disciplinary procedures have been instituted against at least two judges in the courts that will assess the criminal case against the person claimed. One of these judges is the presiding judge of the court. The disciplinary proceedings are executed by a disciplinary chamber whose independence and impartiality are not guaranteed. In addition, the Court has noted that the case of the 33-year-old Polish man, as a result of the prejudicial question put to the European Court of Justice, has not only resulted in broad interest amongst politicians and the media in Poland, but is of special interest to the Polish authorities that comprise the executive branch of government. A memorandum from the procurator general to all Polish public prosecutors, which discusses this specific case, is evidence of this. Questions addressed to the Polish authorities by the Court with regard to the situation in Poland were also only partially answered. The International Legal Assistance Division is of the opinion that as a result of all these factors, there is a danger that the systemic shortcomings will, in fact, impact on the trial of the person claimed. For this reason, in this case the Court has decided against surrender to Poland.

A translated segment of the court's verdict can be found here (pdf, 162,7 KB). For the full (Dutch) version of the verdict, please click here.