{"id":1729,"date":"2020-12-26T18:48:23","date_gmt":"2020-12-26T17:48:23","guid":{"rendered":"https:\/\/johan-callewaert.eu\/?p=1729"},"modified":"2022-02-11T21:46:41","modified_gmt":"2022-02-11T20:46:41","slug":"european-arrest-warrant-independence-of-the-judiciary-judgment-of-the-cjeu-in-the-case-of-openbaar-ministerie","status":"publish","type":"post","link":"https:\/\/johan-callewaert.eu\/de\/european-arrest-warrant-independence-of-the-judiciary-judgment-of-the-cjeu-in-the-case-of-openbaar-ministerie\/","title":{"rendered":"European arrest warrant – independence of the judiciary: judgment of the CJEU in the case of Openbaar Ministerie"},"content":{"rendered":"\n

In the case of Openbaar Ministerie<\/em> (joined cases C-354\/20 PPU and C-412\/20 PPU, 17.12.2020) the Amsterdam District Court was called upon to decide upon the surrender of a person to the Polish authorities<\/strong> on the basis of a European arrest warrant<\/strong> (EAW) issued for the purpose of conducting a criminal investigation. It referred the case to the CJEU for a preliminary ruling on whether, in view of existing evidence of systemic or generalised deficiencies <\/strong>concerning the independence of the judiciary<\/strong> in Poland, the EAW was nonetheless to be executed.<\/p>\n\n\n\n

In response, the CJEU confirmed in the following terms the two-step methodology<\/strong> which it had previously set out in the case of Minister for Justice and Equality<\/em> (Deficiencies in the system of justice<\/em>, C-216\/18 PPU, 25.7.2018):<\/p>\n\n\n\n

Where the executing judicial authority \u2026 has material \u2026 indicating that there is a real risk of breach of the fundamental right to a fair trial guaranteed by the second paragraph of Article 47 of the Charter, on account of systemic or generalised deficiencies so far as concerns the independence of the issuing Member State\u2019s judiciary, that authority must determine, specifically and precisely, whether, having regard to his or her personal situation, to the nature of the offence for which he or she is being prosecuted and the factual context in which the European arrest warrant was issued, and in the light of the information provided by that Member State pursuant to Article 15(2) of that framework decision, there are substantial grounds for believing that that person will run such a risk if he or she is surrendered to that Member State. <\/em>(\u00a7 52)<\/p>\n\n\n\n

Thus, according to the CJEU, the possibility of refusing to execute a European arrest warrant for such reasons presupposes a two-step examination<\/strong> covering, first, the general situation<\/strong> of the judiciary<\/strong> in the State concerned and, secondly, the impact which this situation is likely to have on the fairness of the trial<\/strong> to which the person concerned will be subjected if surrendered (\u00a7 53). Accordingly, it would appear that such a refusal could not lawfully be decided under Union law on the basis of evidence which concerned only the person to be surrendered and was not backed-up by evidence of existing systemic or generalised deficiencies<\/strong> concerning the independence of the issuing Member State\u2019s judiciary<\/strong> (see, in the same vein, concerning Art. 4 of the EU-Charter (prohibition of ill-treatment), CJUE 5.4.2016, Aranyosi et C\u0103ld\u0103raru<\/em>, C-404\/15 et C-659\/15 PPU).<\/p>\n\n\n\n

This methodology might usefully be compared with the one applied by the ECHR in respect of applications challenging the execution of a EAW <\/strong>on account of a violation of Article 6 of the Convention<\/strong> (fair trial), as in Pirozzi v. Belgium<\/em> (17.4.2018, no. 21055\/11; discussed in a post below). While the ECHR can be expected, in such a context, to have regard to any systemic or general deficiencies in the issuing Member State, the existence of such deficiencies would not appear to be a pre-requisite<\/strong> to any finding of a breach in an individual case<\/strong>. This is because, in the context of an individual application under Article 34 of the Convention, the ECHR focuses on the particular circumstances <\/strong>of the individual case (see, mutatis mutandis, Taxquet v. Belgium, <\/em>16.11.2010, no. 926\/05, \u00a7 83). <\/p>\n\n\n\n

The question therefore arises whether such methodological differences<\/strong> could perhaps generate different protection levels<\/strong>, not least in terms of the burden of proof<\/strong>. It would indeed appear that no proof of any systemic or generalised deficiencies in the issuing State is required for a real and individual risk of a \u201cflagrant denial of a fair trial<\/strong>\u201d to amount to a potential breach of Article 6 of the Convention (see ECHR 7.7.1989, Soering v. United Kingdom, <\/em>no. 14038\/88, \u00a7 113; 4.5.2010, Stapleton v. Ireland <\/em>(dec.), <\/em>no. 56588\/07, \u00a7 25).<\/p>\n\n\n\n

Openbaar-Ministerie<\/a>Download PDF<\/a><\/div>\n","protected":false},"excerpt":{"rendered":"

In the case of Openbaar Ministerie (joined cases C-354\/20 PPU and C-412\/20 PPU, 17.12.2020) the Amsterdam District Court was called upon to decide upon the surrender of a person to the Polish authorities on the basis of a European arrest warrant (EAW) issued for the purpose of conducting a criminal investigation. It referred the case […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[23,19],"tags":[],"class_list":["post-1729","post","type-post","status-publish","format-standard","hentry","category-court-of-justice-of-the-eu","category-recent-case-law"],"translation":{"provider":"WPGlobus","version":"3.0.2","language":"de","enabled_languages":["en","de","fr"],"languages":{"en":{"title":true,"content":true,"excerpt":false},"de":{"title":false,"content":false,"excerpt":false},"fr":{"title":false,"content":false,"excerpt":false}}},"_links":{"self":[{"href":"https:\/\/johan-callewaert.eu\/de\/wp-json\/wp\/v2\/posts\/1729","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/johan-callewaert.eu\/de\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/johan-callewaert.eu\/de\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/johan-callewaert.eu\/de\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/johan-callewaert.eu\/de\/wp-json\/wp\/v2\/comments?post=1729"}],"version-history":[{"count":5,"href":"https:\/\/johan-callewaert.eu\/de\/wp-json\/wp\/v2\/posts\/1729\/revisions"}],"predecessor-version":[{"id":1995,"href":"https:\/\/johan-callewaert.eu\/de\/wp-json\/wp\/v2\/posts\/1729\/revisions\/1995"}],"wp:attachment":[{"href":"https:\/\/johan-callewaert.eu\/de\/wp-json\/wp\/v2\/media?parent=1729"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/johan-callewaert.eu\/de\/wp-json\/wp\/v2\/categories?post=1729"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/johan-callewaert.eu\/de\/wp-json\/wp\/v2\/tags?post=1729"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}