The European Court of Justice on July 25 appeared to endorse the EU establishment’s sharp criticism of recent changes to Poland’s judicial system that strengthened political control of the courts. In reality, the ECJ’s ruling in a landmark case involving the extradition of a Pole from Ireland is a reason for celebration for the nationalist Polish government: The decision essentially tells European countries to treat Poland as they would any other EU nation, except in obviously politicised cases, which get special treatment, anyway.
The intricate case has important implications for the European project. It shows that it’s extremely hard to ostracise a country once it is part of the European Union, no matter how the EU member stretches the rules. Rule-stretching isn’t limited to Poland these days, and the EU will have to learn to live with it.
Since 2002, European countries have had a simplified procedure for extradition to other EU member states, based on so-called European arrest warrants. If a suspect who is charged in one EU country is arrested in another, he or she is automatically surrendered to the charging country if one of 32 relatively minor offences is involved. For more serious crimes, the suspect will be extradited if the offence is also considered a crime in the arresting country. Exceptions include an amnesty, an expired status of limitations and several other legal reasons.
Aileen Donnelly, an Irish High Court judge, argued for an addition to the list of exceptions: She asked the ECJ whether the European Commission’s determination that Poland’s judicial changes undermine the rule of law was sufficient grounds to automatically refuse an extradition request for Artur Celmar, a Pole accused of drug trafficking. She postponed the suspect’s handover out of concern he might not get a fair trial. Recent Polish legislation has given the government and the parliamentary majority greater control over the appointment and removal of judges, and the commission has begun an infringement procedure against Poland that could theoretically end in the loss of the country’s EU vote. The Polish government has tried to compromise with the EU without relinquishing much of its newly won power over the courts, to no avail.
Donnelly, meanwhile, referred Celmer’s case to the ECJ to decide whether Ireland could trust the Polish judiciary to give a fair trial. Spain was particularly interested in the court’s decision because of the case of Carles Puigdemont, the former president of the government of Catalonia. He has been in exile since the region’s unilateral declaration of independence last year. Puigdemont is accused in Spain of rebellion and of misusing government funds to hold an independence referendum declared illegal by the Spanish Supreme Court, and Spain has had difficulty in getting other European countries to surrender him.
The ECJ ruling was also of great interest to Hungary, Poland’s ally in trying to thwart EU accusations of undermining the rule of law, and the Netherlands, which has a long record of rejecting European arrest warrants and is on the side of Ireland. The ECJ was forced to consider whether European countries could make judgements about the legitimacy and human rights compliance of one another’s courts.
The ruling set an almost insurmountable hurdle to allowing all arrest warrants from one country to be automatically rejected: The court said the European Council, comprising all EU national leaders, would need a unanimous vote to declare that country in breach of EU rule of law requirements.
So, the ECJ ruled that, while the Irish court has legitimate grounds to worry about the Polish judiciary because of the infringement procedure, it needs to determine the likelihood of a fair trial on a case-by-case basis. It would need to find out whether Celmer in particular faced any rights infringements due to any part of the Polish judiciary reform. That means a dialogue with the Polish authorities about the kind of treatment Celmer would get in his home country.
Even if the Irish court goes through this painstaking procedure in the Celmer case, it won’t happen with every Polish handover request in every European country. Only extremely determined lawyers and judges would take this uncertain route, especially in cases with no discernible political implications. Poland will keep getting back suspected murderers, drug dealers and people traffickers like any other European country, no matter what liberal judges domestically and abroad think of its revamped court system.
In politicised cases, meanwhile, the existing exceptions to the European arrest warrant system work well enough when deftly used. Germany detained Puigdemont on a European arrest warrant issued by Spain, but a local German court decided he couldn’t be handed over for rebellion because in Germany, that charge would need to include accusations of violence. Although the German court ruled Puigdemont could be surrendered on a misuse of funds charge, Spain preferred to cancel the warrant rather than try Puigdemont for the smaller offence only. Puigdemont plans to leave Germany for Belgium, which won’t extradite him for rebellion, either.
Punishing dissent across European borders is difficult, and it will remain so. Even though it’s hard to strip illiberal governments inside the EU of their membership privileges, their opponents will at least be able to take refuge in neighbouring countries.
Leonid Bershidsky is a Bloomberg Opinion columnist covering European politics and business. Source: Bloomberg.