On 15 October, the Defence Extradition Lawyers Forum (DELF) had their annual conference with the first panel focussing on the ‘The erosion of the Rule of Law in Europe’. This was chaired by Rebeca Hill of St Andrews Hill Chambers, along with Lauren Pech, Professor in European Law at Middlesex University, Maria Ejachart-Dubois, lawyer at the Polish Commission for Human Rights and co-founder of the Free Courts civic initiative, and Clare Montgomery QC of Matrix Chambers (lead counsel for Wozniak & Chlabicz), all providing expert insight. The following is a summary of the discussion, recent legal developments and thoughts about future direction, and specifically the impact of Brexit on past rulings.

Rule of Law backsliding

The general mood of the panel was one of concern and fear for the future as the Rule of Law in Europe has increasingly become under threat, as evidenced not only by developments in Hungary and Poland, but other countries in Europe with the UK not immune to such criticisms. This session primarily dealt with developments in Poland, well known by extradition practitioners since the 2015 election of the populist PiS party, which Professor Pech described as ‘Rule of Law backsliding’. He defined this as the process through which elected public authorities deliberately implement blueprints designed to systematically weaken, capture and/or annihilate internal checks on power. Firstly, the independence of the judiciary, prosecutors and broadcast media is attacked. Secondly, lawyers, academics and civil society groups are targeted.

The panel explored how these changes are possible. A false narrative is created to encourage the belief that fundamental changes to the judiciary are required and to justify the systemic destruction of an independent judiciary. Unconstitutional changes are then presented as constitutional. The checks and balances provided by an independent judiciary and media which are vital to a democracy are deliberately undermined, resulting in Rule of Law backsliding.

Political influence overriding judicial independence

A discussion took place regarding the steps taken in Poland to dismantle judicial independence and the rule of law. These were summed up as:

1. No independent prosecution service (as it is now under the control of the Minister of Justice).
2. The unconstitutional re-establishment of the National Council of the Judiciary  (NCJ), whose members are made up of those elected by the ruling majority and whose powers include appointment, promotion and discipline of Judges (Poland’s NCJ was expelled from the European Networks of Councils for the Judiciary on 28 October 2021, the first ever NCJ to be expelled). This has led, in Poland, to an increasing number of courts being composed, in part, by what the panel described as ‘fake’ Judges.
3. The ‘muzzle’ law preventing Judges from questioning judicial ‘reforms’ and the punishing of those who do, along with the irregular appointments made by the neo-NCJ.
4. The lowering of the retirement age of ordinary Judges and forced retirement of Supreme Court Judges as well as the mass dismissal of the Presidents and Vice-Presidents of ordinary courts, resulting in hundreds of Judges being placed into early retirement and/or replaced by political appointees. This is combined with the arbitrary power of the executive to allow some Judges to work beyond retirement age (both the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR) have found against these measures since).
5. The use of the irregularly composed, now captured ‘Constitutional Tribunal’ of Poland to make it unconstitutional for the judiciary to directly apply EU Law and European Court of Human Rights judicial requirements, in particular as regards the ‘established by law’ criterion.
6. The (unconstitutional) creation of the Disciplinary Chamber of the Supreme Court (the independence of which is not guaranteed) which has, amongst others, the power to lift immunity from prosecution of Judges, which results in their automatic suspension from office and reduced salaries.
7. Harassment of lawyers who are also subject to similar disciplinary sanctions.

The result is that Poland’s Supreme Court has effectively become contaminated with irregularly appointed individuals. Judges seeking to comply with EU and ECtHR rulings are harassed, investigated and/or sanctioned by the Disciplinary Chamber, creating a chilling effect on Judges. Ordinary courts have been purged, with 140-170 Presidents and Vice Presidents arbitrarily dismissed and replaced with those friendly to the Minister of Justice. Poland has become a ‘legal black hole’ (for the first time in the history of the EU, a (Polish) judge has been suspended for seeking to send Rule of Law related questions to the CJEU).

Maria Ejachart-Dubois, who currently practices in Poland, introduced a more personal note:

Our world collapsed, lawyers were not prepared for this. The values lawyers believed in simply disappeared. Substantive and legal argument no longer mattered.

She commended the brave Judges who ‘face intensive repression’, the ‘activism of lawyers’ and Poland’s long history of protest and strong civil society. There have been some successful legal challenges such as Kuba, an administrative court Judge, (joined Cases C-585/18, C-624/18 and C-625/18 A.K. v Krajowa Rada Sądownictwa, and CP and DO v Sąd Najwyższy). In 2019, the Court of Justice of the European Union (CJEU) ruled that the Disciplinary Chamber of the Supreme Court is not an independent court, and that the composition of the judiciary within the Chamber is not an impartial or independent tribunal (Kuba was reinstated). Another example is the case of the Judges Broda and Bojara (applications no. 26691/18 and 27367/18). In 2021 the ECtHR held that their arbitrary dismissals as Vice-Presidents of a court violated Article 6 ECHR.

Sadly, these successes are far outweighed by the significant number of Judges forcibly retired or dismissed from senior leadership positions without remedy and the appointment and promotion of many ‘fake Judges’, who currently make up over 19% of the judiciary.

What hope for the future?

The panel were pessimistic about the future, concluding that the extreme position adopted by the irregularly composed Constitutional Tribunal of Poland (which interprets the Constitution), undermines all mutual trust in EU law. This will inevitably impact on European Arrest Warrants (EAWs). The EU is finally ‘waking up’ to the dangers of this erosion in the Rule of Law. Poland (and Hungary) have been subject to Article 7(1) Treaty on European Union (TEU) proceedings, infringement action is pending, in addition to daily fines of over one million Euros. The ECtHR is also likely to prioritise Polish cases, so we should expect a ‘tsunami of ECHR/CJEU litigation’. The panel felt it was unlikely the Polish government will enter into a short-term compromise, but by failing to do so they will inevitably lose every case in the CJEU and ECtHR. To date, there have been around 100 Polish Rule of Law cases in the ECtHR and CJEU, soon there will be thousands.

The panel concluded it is likely that all Judges will eventually need to reapply for their jobs via the compromised neo-National Council of the Judiciary (recently expelled from the ECNJ due to its lack of independence and active complicity in undermining judicial independence in Poland), and the government will ultimately control all judiciary in Poland, via a forthcoming ‘flattening’ of the court structure. The ability to have a fair trial will be dependent on the courage and wisdom of individual Judges. With 130 disciplinary proceedings pending, Judges operate in a climate of fear and uncertainty where legitimate rulings could result in disciplinary action. The only way the Rule of Law could be rebuilt, in the panel’s view, is for Poland to follow, fully and promptly, the judgments of the CJEU and ECtHR which provide clear guidance on how this can be remedied. But the political space and will are required to make such changes, and this does not currently exist.

The panel raised concerns about the impact these ‘reforms’ have had on the minds of Polish society and Judges, and encouraged European lawyers to be consistent and use all legal tools available to challenge the Polish system. A helpful website exists to identify all ‘fake Judges’, and to establish when or by whom they were nominated to assist with legal challenges in this area.

Wozniak & Chlabicz (Wozniak v the Circuit Court in Gniezno and Wojciech Chlabicz v Regional Court in Bialystok  [2021] EWHC 2557 (Admin)

The first session concluded with commentary on the recent landmark judgment of Wozniak, a case in which Clare Montgomery QC acted as leading counsel for the two appellants. This decision was disappointing, but not altogether surprising, given that once the Court confirmed it was bound by CJEU decisions prior to 31 December 2020, the rulings in LM (C-216/18 PPU) and L and P applied (C-354/20 PPU and C-412/20 PPU). Therefore, where evidence of systemic or generalised deficiencies concerning the independence of the judiciary in the issuing state exist, a specific, precise, and individualised analysis is still required to show such deficiencies have a specific impact on a particular case. An automatic refusal of a European Arrest Warrant requires a decision by the European Council to suspend Framework Decision 2002/584 in respect of Poland.

The panel described this as Kafkaesque. No one will know in advance who the tribunal will be as they are randomly selected. If it consists of a fake Judge, the legitimacy of the Judge cannot be challenged in Polish law and a reference to the CJEU is not possible. The Irish Supreme Court has recently recognised the impossibility of this situation and noted the troubling developments in the rule of law since LM. In July 2021 it made a further reference to the CJEU (W O,J L v Minister for Justice and Equality (C-480/21) dealing with this issue.

Practitioners were advised that requests for further information under the Article 15 Framework Decision should still be made of the Polish Judicial Authority, such as the potential identity of the Judges, undertakings regarding their independence and impartiality, the ability to challenge their appointment, and an assurance that the trial will be conducted in accordance with Article 6 ECHR, even if no response is forthcoming.

The panel were disappointed that the Admin Court did not grapple with the reality that as soon as the system is challenged in Poland, those challenging become the target for retribution.

The panel acknowledged that as long as the Framework Decision 2002/584 applies, the principle and assumption of mutual trust and confidence remain an obstacle, as does the political investment in the EU of bringing and keeping Poland within the EU.

However, the fight goes on with a further challenge in sight regarding the Irish Supreme Court CJEU reference, an Amsterdam CJEU reference – Cases C-562/21 and C-563/21 – to be heard in November, and the pending Wozniak application for permission to appeal to the Supreme Court. Whether CJEU case law is still binding, or the Supreme Court can diverge from it, and the possibility of challenging whether a Judge is properly considered an issuing Judicial Authority, will be the subject of further judicial exploration (a Norwegian court recently refused a surrender to Poland on the ground, amongst others, that there is now a ‘significant greater danger and probability’ that the Polish court which may try the suspect may not consist of lawful Judges).

What difference does the Trade and Cooperation Agreement (TCA) 2020 make?

The Framework Decision 2002/584 and Article 7 (TEU) no longer apply to extradition arrests post-Brexit and the TCA 2020 applies. The status and binding nature of CJEU rulings is uncertain. Arguably, CJEU case law should no longer apply in UK law and post-Brexit Arrest Warrants should not be bound by the decisions in LM, L & P or indeed Wozniak. This will be the next focus of attention by the Courts.

The TCA 2020 reinforces the principle of mutual trust and confidence, and the assumption that issuing states will comply with such principles. The panel suggested practitioners should start with establishing if these basic principles exist:

1. Is the individual Judge who issued the EAW an independent Judicial Authority?
2. The above question should not only consider the independence of the person issuing the Arrest Warrant, but their structural position – i.e. can they act independently once in office?
3. Is judicial oversight or an independent assessment of that person capable of review before the request is issued?
4. Is a reference to the CJEU possible?
5. If such arguments regarding the authorising process fail, submissions regarding Article 6 fair trial still exist.

The panel noted that an attack on the authorising process is always preferable, as this refers directly to the challenges posed by the erosion of the Rule of Law. The bar for a successful Article 6 challenge is set so high it is very difficult to meet.

This first session concluded with an illuminating Q&A session and debate on the future. For some players in the Polish government, it is a matter of political survival not to restore the Rule of Law. Fines imposed may not be paid, which could result in the EU withdrawing funding. It was felt that Poland is not yet ready for ‘Polexit’ as membership of the EU in Poland is popular, but that may change if EU funding is withdrawn. The threat to mutual trust cannot be underestimated and other national courts/governments may follow Poland’s example and start to ignore the CJEU. If the EU becomes ‘a la carte’, this undermines the principle of its foundation and may cause it to contract. The impact of developments in Poland cannot and should not be underestimated.

This article was originally published in Issue 26 of the Defence Extradition Lawyers Forum (DELF) newsletter on 12 November 2021.