A German court has refused to extradite a Polish suspect to his home country due to "profound doubts about the future independence of the Polish judiciary."
Karlsruhe Higher Regional Court issued a press release expressing "doubts as to whether the independence of the Polish judiciary" and the "right to a fair trial" was guaranteed in the wake of Poland's controversial judicial reforms.
The court therefore "revoked the arrest warrant and asked the Polish authorities for further information about the effects of the Polish judicial reform" on these specific proceedings. The suspect had been arrested on December 4, 2019.
According to the German Association of Judges, it is the first time this has happened in Germany.
Poland would like to prosecute the suspect for allegations of fraud. He could face a maximum prison sentence of eight years. However, he rejects the allegations and claims two influential Polish citizens had bribed witnesses to make false statements and harm him physically.
The press release further states that the Senate is abiding by a 2018 decision of the European Court of Justice (CJEU), which obliges the national courts to examine the guarantee of the European fundamental right to a fair trial in the event of extradition.
The Polish court will also have to rule on the alleged "interference by influential people" in the truth-finding mission of the proceedings.
However, if the Polish judges could face disciplinary sanctions for allowing the evidence, they would not be entirely independent. That would mean this would not be a fair trial," the German ruling obtained by the news website Redaktionsnetzwerk Deutschland (RND) states.
On top of that, the Karlsruhe Higher Regional Court said it had "profound doubts about the future independence of the Polish judiciary".
When making its decision to release the man, the court also considered that the suspect is not charged with a particularly serious crime and that he has a permanent residence in Germany.
The federal managing director of the German Judges Association, Sven Rebehn, told the RND: “Poland is threatening to isolate itself in the European legal community by restructuring its judicial system. The other member states find it very difficult to support law enforcement in a country that is moving ever further away from the EU's common understanding of the rule of law. However, if the integrity of the Polish constitutional state is increasingly in question, legal cooperation with the judiciary in Poland will lose ground. ”
On January 7, 2019, the CJEU issued a resolution, which referred to an older judgement with regards to an inquiry by the Irish High Court. Ireland had asked whether it can extradite a Polish citizen under the European Arrest Warrant procedure.
The CJEU also laid down the criteria and definition of what an independent court is.
The Karlsruhe court referred to these two judgements and examined whether the rule of law was under threat in Poland. The result was: it is.
The Muzzle Law
Poland's president Andrzej Duda had signed the Muzzle law on February 4, 2020. It aims at disciplining judges who question government judicial reforms that the EU says don't comply with the rule of law.
The law came into force on February 14, 2020.
Analysts fear the law could be used to intimidate or stifle judges critical of legal reforms imposed by the government.
The step was criticised by the EU, Polish legal experts and opposition lawmakers. The EU argued the draft law violates EU principles and the separation of powers.
Poland's ruling party defended the law, saying it is aimed to put an end to the "anarchy" among judges.
The new law also forbids judges from publicly criticising new judicial appointments.
The "Constitutional blog" (transl. Verfassungsblog) of the Center for Global Constitutionalism published an open letter to President of the European Commission Ursula von der Leyen on March 9, criticising the Muzzle Law.
In the open letter, a group of legal academics, warn against the danger the new law poses. In it they urge von der Leyen to take further action. "The Commission must quickly bring an expedited infringement action against this “muzzle law,” the letter reads.
They argue the law "bars judges from ensuring observance of the right to a fair trial and from guaranteeing rights deriving from the EU treaties, including effective judicial protection."
Moreover, they say the German court's decision and that of a Norwegian court "are a sign that the EU's legal system is already unravelling, and if judicial cooperation can no longer be assured, a major pillar that holds up the EU will soon collapse.