Openbaar Ministerie (Tribunal établi par la loi dans l’État membre d’émission)

On 22 February 2022, the Grand Chamber of the Court of Justice of the European Union held a decision in the context of two joined cases regarding the execution of European Arrest Warrants issued by Polish authorities.

In case C-562/21, a Polish judicial authority issued an EAW for the purposes of executing a custodial sentence imposed against X by a final judgement of 20 June 2020 for offences of extorsion and threat of violence. In case C563/21, Polish judicial authorities issued six EAWs against Y, a Polish national, in order to arrest and surrender him. Two EAWs were issued for the purpose of executing custodial sentences and the remaining four were issued for the purpose of conducting criminal prosecution in relation to several offences, including fraud.

The two defendants were remained in custody in the Netherlands pending decision on their surrender to which they didn’t consent. Against this background, the referring court (Rechtbank Amsterdam) asked the CJEU whether, in application of the principles set out in the cases Minister for Justice and Equality and Openbaar Ministerie, it should refuse the surrender of the wanted person in the light of the risk of violation of the fundamental rights of the persons concerned and the specific context of the cases in question. More specifically, in the first case, the concerns lie in the lack of effective judicial remedies for any breach of the fundamental right to a fair trial during the procedure which led to the conviction of X. Whereas the second case relates to a situation where the person concerned cannot determine the composition of the panel of judges before which he will be tried due to the random allocation of cases, while at the same time he is deprived of an effective remedy in the issuing Member State to challenge the validity of the judicial appointment.

The Court held that the executing judicial authority is required to carry out the two-step examination, as established in its previous case-law, in order to assess whether the requested person runs a real risk of breach of his or her fundamental right to a fair trial before a tribunal previously established by law if surrendered to the issuing Member State. After clarifying the considerations on which this two-step examination should be based, the Court held that the executing authority may refuse to surrender the requested person for the purpose of executing a custodial sentence where there are substantial grounds for believing that there has been a breach of that person’s fundamental right. In the context of that assessment, the executing authority should take into account inter alia the information provided by the requested person or any other circumstance relevant to the assessment of the independence and impartiality of the judicial panel, and cannot rely only on the mere circumstance that the requested person cannot challenge the validity of the appointment of a judge or the lawfulness of the performance of the judge’s judicial functions.

In terms of a EAW issued for the purpose of conducting a criminal prosecution, the Court ruled that the executing authority may refuse to surrender the requested person if there are substantial grounds for believing that that person, if surrendered, runs a real risk of breach of her fundamental right to a fair trial. To this end, the executing authority should consider inter alia the information provided by the person concerned relating to his or her personal situation, the nature of the offence for which that person is prosecuted, the factual context surrounding that European arrest warrant or any other relevant circumstance; and cannot rely exclusively on the mere fact that the composition of the panel of judges before which the requested person will be tried is not known, or on the lack of an effective remedy to challenge the validity of the judicial appointment.