Mutual Trust As Well As Independence Of The Judiciary Later On The Cjeu Judgment Inwards Lm – Novel Era Or Trouble Concern Every Minute Usual?

Dr hab Agnieszka Frąckowiak-Adamska, Faculty of Law, University of Wroclaw

In representative C-216/18 PPU LM the CJEU was asked past times an Irish Gaelic courtroom to address i of the most serious electrical flow legal challenges of the EU: the consequences of restrictions imposed upon judicial independence inward i Member State for other Member U.S. of A. of the Union. The sequence of laws adopted inward 2015-2018 inward Poland has been assessed usually past times diverse external as well as internal institutions equally “enable(ing) the legislative as well as executive powers to interfere inward a severe as well as extensive vogue inward the direction of justice as well as thereby pos(ing) a grave threat to the judicial independence equally a key chemical factor of the dominion of law” (quotation from the Venice Commission). Consequently, to protect the dominion of police inward Europe, the European Commission submitted for the outset fourth dimension inward the history a reasoned proposal activating the Article vii TEU mechanism. Two infringement procedures based on Article 258 TFEU against Poland are also ongoing (on the police on the ordinary courts scheme - C-192/18 as well as on the law on the Supreme Court). The Supreme Court itself has also asked the CJEU to dominion on the latter number (see give-and-take here).

Is the scheme of the judiciary inward Member U.S. of A. the EU’s business?

The Polish reforms are problematic for the European Union because national courts are to ensure “the total application of European Union police (…) as well as (…)  judicial protection of an individual’s rights nether that law” (Opinion 1/09, § 68). If politicians tin give notice influence courts’ decisions, they tin give notice purpose this leverage to pursue sheer protectionism, instead of advancing the interests linked to the European Union internal marketplace as well as citizenship. In addition, deficiencies of judicial independence inward i Member State entail problems for the courts inward other Member States, equally the latter are obliged past times European Union police to recognize as well as enforce judicial decisions coming from other European Union Member States. Should the courts trust the judgments from the State inward which the sectionalization of powers is blurred?

Many questions arise inward this context. Member U.S. of A. as well as their legal orders differ equally to the heart as well as soul as well as procedures, ways as well as grade of protection of fundamental rights, courtroom scheme as well as the expediency of proceedings. These differences are treated equally variety as well as receive got non prevented the European Union from establishing the European expanse of justice based on mutual trust as well as mutual recognition of judgments. How to discovery the limits of States’ liberty to organise their judiciary? How to differentiate betwixt a “reorganisation” as well as a breach of the dominion of law? Is the European Union (and if yes, who just – Council, CJEU?) legitimized to brand such a decision? And what consequences should live on drawn if a breach of the dominion of police is established?

These issues tin give notice live on of import for all 24 European Union acts introducing mutual recognition of judgments (14 regulations on civil cases as well as 10 framework decisions as well as 2 directives on criminal cooperation). The LM representative arose inward the context of i of them – the European Arrest Warrant (EAW) Framework Decision.

The preliminary reference inward the LM case

In the Irish Gaelic case, inward which the EAW was issued past times a Polish judicial authorization against a individual prosecuted for a drug related crime, the accused argued that, due to the reforms of the Polish judiciary, at that topographic point is a adventure of denial of justice if he is transferred to Poland. Consequently, the Irish Gaelic courtroom premised its preliminary query to the CJEU on the correct to fair trial. As at this fourth dimension Poland was already dependent champaign to the phase of a reasoned proposal past times the Commission equally referred to inward Article 7(1) TEU (which would, if adopted past times the Council, receive got established a adventure of a threat to the dominion of police inward Poland), the Irish Gaelic courtroom asked whether inward representative of “cogent prove that weather inward the issuing Member State are incompatible amongst the fundamental correct to a fair trial because the scheme of justice itself inward the issuing Member State is no longer operating nether the dominion of law” it should “make whatever farther assessment, specific as well as precise, equally to the exposure of the private concerned to the adventure of unfair trial”. Such a two-prong exam (first - “systemic deficiencies inward the state”, as well as 2nd – “actual adventure inward an private case”) was established past times the CJEU inward the Aranyosi judgment (discussed here), which also related to the protection of fundamental rights inward the context of mutual recognition of judgments, inward the context of detention conditions.

In the LM representative the CJEU could reply the query inward 3 dissimilar ways. First, it could refrain from assessing the behavior on of the restrictions of judicial independence on the EAW machinery (following Poland’s declaration that alone the Council is empowered to do so, on the footing of Article vii TEU). Second, it could follow the Aranyosi pattern, ie the two-step test. As the in conclusion alternative, it could let to suspend the cooperation amongst a Member State which breaches the obligation to ensure the independence of its courts. This in conclusion possibility could appear all the to a greater extent than probable path towards deciding the LM representative later the Court issued its recent conclusion inward the case of Associação Sindical dos Juízes Portugueses (discussed here), inward para 37 of which it stated that the obligation of judicial independence stems from the European Union law.

Judgment inward the LM case 

Maybe because of fourth dimension constraints (as the due urgent physical care for applied) or peradventure due to an unwillingness of the CJEU to travel dragged downwardly into a political brawl, the Grand Duchy of Luxembourg establishment took the safest path of applying to the representative the already existing designing (Aranyosi).

According to the judgment of 25 July 2018 inward the LM case, national courts should apply both steps of the Aranyosi exam when judicial independence inward the issuing province is endangered. If the executing courtroom possesses a potent prove of systemic or generalised deficiencies inward this respect, it should travel on to the 2nd footstep – of private representative assessment. The CJEU indicated that suspending the machinery of recognition is possible alone if the conclusion on the footing of Art. vii TEU is taken (§§ 71 -73 of LM).

Until this minute fifty-fifty if a Member State is dependent champaign to a reasoned proposal, equally referred to inward Article 7(1) TEU, “the executing judicial authorization must refrain from giving effect to the European arrest warrant” alone if at that topographic point are substantial grounds for believing that that individual volition run a existent adventure of a breach of the fundamental correct to a fair trial (§ 78 as well as 59). However, at that topographic point is i of import novelty (stemming from §§ lx as well as 68 of LM) - the fact of starting the Article vii TEU physical care for rebuts the presumption of mutual trust equally the private assessment is required inward every representative inward which the individual dependent champaign to EAW pleads it.

By the same token, the Court found itself competent to tackle the number of judicial independence, but alone from the perspective of the protection of an individual. It did non create upward one's heed whatever systemic consequences of limiting the judicial independence for judicial cooperation. The number of judicial independence was thus treated equally a business office of a correct to a fair trial protected past times Article 47 of the Charter. The reply was based on the interpretation of Article 1 (3) of the EAW framework decision, which states that this human activity shall non modify “the obligation to honor fundamental rights as well as fundamental legal principles equally enshrined inward Article 6” [TEU] (nota bene interesting from the Freudian perspective is that the CJEU did consider inward this provision also the reference to Article 2 TEU (§ 45 of LM), which sets out the values of the European Union enforced past times the Article vii process, fifty-fifty though Article 1(3) mentions alone Article half-dozen TEU, which refers to the mechanisms for the protection of human rights inside the European Union legal system).

The reasoning of the courtroom unfolds inward 3 parts.

Firstly (§§ 33-46) the CJEU reminds of the fundamental values as well as principles which are at stake inward the representative – Article 2 TEU, mutual trust, as well as mutual recognition principles. Then it confirms that the execution of the EAW constitutes a dominion as well as tin give notice live on refused alone when i of the grounds of refusal exhaustively listed past times the Framework Decision materialises. Additionally, the executing judicial authorization has the ability to convey the give upward physical care for to an halt ‘in special circumstances’, when limitations are placed on the principles of mutual recognition as well as mutual trust.

In the 2nd business office (§§ 47-59) the CJEU verifies whether a adventure of a breach of the fundamental correct to an independent courtroom tin give notice justify a limitation of the mutual trust as well as permit the executing judicial authorization to refrain from giving effect to an EAW. This highlights the importance of judicial independence equally a business office of a correct to fair trial as well as the dominion of law. It repeats the statements made past times the Court inward Associação Sindical dos Juízes Portugueses i.a. that it is an obligation of Member U.S. of A. to ensure that their courts which “come inside its judicial scheme inward the fields covered past times European Union law” come across the requirements of effective judicial protection. Only if at that topographic point is a existent adventure that the individual volition endure a breach of his fundamental correct to an independent tribunal and, hence of the essence of the correct to a fair trial, tin give notice the executing judicial authorization to refrain, past times way of an exception, from giving effect to the EAW (§ 59).

For national courts as well as individuals the most of import business office of the judgment are paras 60-78, which learn the onetime on how to travel on if the individual inward honor of whom an EAW has been issued pleads that at that topographic point are systemic or generalized deficiencies inward the independence of courts inward the issuing state. The physical care for is non left to the discretion of the executing authority. In such a representative the executing authorization is required to brand an assessment of the adventure inward the private representative (§ 60). The assessment consists of 2 steps – a systemic assessment (§ 61-68) as well as a specific i (§ 69-78).

The outset footstep (a systemic assessment) should live on done past times the executing authorization on the footing of “objective, reliable, specific as well as properly updated” information as well as according to the criteria of judicial independence laid out past times the CJEU inward §§ 62-67 of the LM case. If this assessment implies the conclusion that at that topographic point is a existent adventure of systemic or generalised deficiencies of judicial independence there, the courtroom is obliged to exceed to a specific assessment. The executing authorization does non receive got to brand its ain assessment if the issuing province is dependent champaign to reasoned proposal equally referred to inward Article 7(1) TEU, as well as “the executing judicial authorization considers that it possesses, on the basis, inward particular, of such a proposal, cloth showing that at that topographic point are systemic deficiencies, inward the lite of those values, at the grade of that Member State’s judiciary” (§ 68). In such a representative also the executing authorization should exceed to the 2nd step.

The 2nd footstep (specific assessment) aims to verify whether inward the particular circumstances of the representative at that topographic point are substantial grounds for believing that, next the give upward to the issuing Member State, the requested individual volition run a existent adventure of a breach of the fundamental correct to a fair trial (§ 69-78). The courtroom should verify firstly “to what extent the systemic or generalised deficiencies are liable to receive got an behavior on at the grade of that State’s courts amongst jurisdiction over the proceedings to which the requested individual volition live on subject” (§ 74). In representative of a positive answer, it should assess whether at that topographic point is a existent adventure of a breach of his fundamental correct to an independent tribunal, having regard to his or her personal situation, the nature of the offence for which he or she is prosecuted as well as the factual context that forms the footing of the European Arrest Warrant.

It tin give notice perform this assessment on the footing of (§§ 75-78): 1) specific concerns expressed past times the private concerned as well as whatever information provided past times him or her; 2) whatever supplementary information obtained from the issuing judicial authorization inward the reply to the (mandatory) asking made past times the executing authority’; as well as 3) (optional) assistance from the cardinal authorization or i of the cardinal authorities of the issuing Member State.

If the information obtained inward such a way past times the executing judicial authorization “does non Pb the latter to discount the beingness of a existent adventure (…) (for the private concerned) “the executing judicial authorization must refrain from giving effect to the European arrest warrant” (§ 78).

Assessment of the LM judgment

It is hard to assess the LM judgment inward an unequivocal way (see the debate on Verfassungblog). The Grand Duchy of Luxembourg courtroom is praised past times about for confirming its competence to tackle the number of the independence of judiciary as well as for its judicial prudence. It is criticized past times others for non setting systemic consequences of the breach of independence but also for a Definition of judicial independence which is also detailed as well as disconnected from the ECHR’s.

Certainly, the LM judgment did non halt the Polish “reforms”. Instead it allowed to rebut the presumption of mutual trust if a Member State is dependent champaign to a reasoned proposal provided past times Article 7(1) TEU. In such a representative the private assessment is required inward every representative inward which it is pleaded. But it agency that the executing authorities would receive got to brand embarrassing investigations close the substantial issues of the cases as well as of the sectionalization of powers inward Poland. In my sentiment (developed here), it tin give notice contravene the spirit of mutual trust betwixt the courts as well as ofttimes volition live on impossible inward practice. Arguably the CJEU should receive got focussed non alone on the protection of individuals but also on the interests of other U.S. of A. as well as the European Union at large. In the LM representative the CJEU acted similar the Court of Human Rights which is ever real welcome. But it is non plenty to stand upward up against the devastation of the dominion of police inward Europe. Maybe inward side past times side cases – either based on the Article 258 TFEU infringement physical care for or next the preliminary reference from the Polish Supreme Court it volition demo also its other human face upward – this of a constitutional courtroom of the EU.

But the LM judgment tin give notice also live on seen equally an of import evolution of the representative police related to the protection of fundamental rights inward the context of mutual recognition. At to the lowest degree about questions arising later the Aranyosi conclusion receive got been answered. It is at nowadays clear that non alone an infringement of Article four of the Charter (on liberty from torture or other inhuman or degrading treatment, inward the context of detention conditions) but also of the essence of Article 47 (which is ever at stake when the judicial independence is limited) tin give notice justify refraining from the execution of the EAW. However, it is to clarify whether the EAW should non live on executed also inward representative of the adventure of the breach of farther fundamental rights e.g. a correct to a private as well as household unit of measurement life. The detailed analysis on the number whether the correct to the fair trial is capable of limiting the execution of EAW (§§ 47-59) suggests that it is non for certain that every correct protected past times the Charter tin give notice receive got this effect.

Other aspects to live on clarified inward the hereafter are what “refraining from giving effect to the EAW” just agency as well as whether the systemic deficiencies are a prerequisite to apply the private test. The Aranyosi as well as LM cases are related to systemic deficiencies, but their conclusion is that what is ever required to live on performed is the private adventure test. The evolution of the representative police on about other facial expression of the Area of Freedom, Security as well as Justice – the mutual European asylum scheme – shows that the transfer of an asylum seeker to about other Member State should live on refused if at that topographic point is a adventure of the individual concerned suffering inhuman or degrading handling fifty-fifty if at that topographic point are no systemic deficiencies (case C-578/16 PPU, C.K., discussed here). The opened upward query is whether the same designing volition apply to the EAW as well as to other fundamental rights.

My in conclusion dot is that the non-execution of EAWs based on an private exam is non capable to resolve the essence of the problems amongst fundamental rights as well as judicial independence. It ofttimes results inward an impunity for the requested person, which constitutes a severe lawsuit for others (victims) as well as for Earth interest. Moreover, it tin give notice relieve fundamental rights of individuals partly only. The parallel judgment inward Case C-220/18 PPU ML confirms this conclusion, equally it limits the pregnant of the Aranyosi assessment of detention weather inward the issuing Member State to the outset prisons inward which the individual concerned volition live on held right away later the surrender. The CJEU admitted that “since a individual who is the dependent champaign of a European arrest warrant can, equally a full general rule, live on detained inward whatever prison theatre inward the territory of that State. It is to a greater extent than ofttimes than non not possible at the phase of executing a European arrest warrant to position all the prisons inward which such a individual volition genuinely live on detained” (§ 81 of ML). In reality, therefore, the private is non wholly protected against inhuman treatment. The same limitation is seen already inward LM judgment according to which the executing authorization should verify “to what extent the systemic or generalised deficiencies (..) are liable to receive got an behavior on at the grade of that State’s courts amongst jurisdiction over the proceedings to which the requested individual volition live on subject.” (§ 74 of LM).

The non-execution of EAWs should live on treated equally a signal of serious problems as well as the European Union should reverberate how to solve their sources. Here at that topographic point is a clear divergence betwixt prison theatre weather as well as the independence of the judiciary. In the representative of a breach of fundamental rights (Aranyosi) the ground laying at the pump of the breach was a serious structural incapacity of about Member U.S. of A. to ensure the proper measure of detention weather inward prisons. Improving this capacity is a long, costly as well as complicated process, which the European Union could alone create as well as support. In the representative of independence of judges inward Poland the source of the work is the volition of the governing party. The work could live on real easily as well as rapidly resolved past times withdrawing the reforms related to courts, according to the recommendations of the Venice Commission/European Commission. The alone affair that the European Union tin give notice (and should) do is to laid clear limits equally to the dominion of police as well as the consequences of trespassing them. If the European Union had done it before addressing Hungary, the Polish authorities would non receive got dared to follow the Hungarian path.

Barnard & Peers: chapter 9, chapter 24

JHA4: chapter II:3

Photo credit: CNBC.com

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