“(1) Notwithstanding the conclusions of the Court of Justice in [the judgment of5 April 2016 ,] Aranyosi and Caldararu [(C-404/15 and C-659/1 PPU), EU:C:2016:198 ], where a national court determines there is cogent evidence that conditions in the issuing Member State are incompatible with the fundamental right to a fair trial because the system of justice itself in the issuing Member State is no longer operating under the rule of law, is it necessary for the executing judicial authority to make any further assessment, specific and precise, as to the exposure of the individual concerned to the risk of unfair trial where his trial will take place within a system no longer operating within the rule of law ? (2) If the test to be applied requires a specific assessment of the requested person's real risk of a flagrant denial of justice and where the national court has concluded that there is a systemic breach of the rule of law, is the national court as executing judicial authority obliged to revert to the issuing judicial authority for any further necessary information that could enable the national court [to?] discount the existence of the risk to an unfair trial and if so, what guarantees as to fair trial would be required?”
“The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.”
“Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented.”
“3. This Framework Decision shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 of the Treaty on European Union.”
“59. It must, accordingly, be held that the existence of a real risk that the person in respect of whom a European arrest warrant has been issued will, if surrendered to the issuing judicial authority, suffer a breach of his fundamental right to an independent tribunal and, therefore, of the essence of his fundamental right to a fair trial, a right guaranteed by the second paragraph of Article 47 of the [EU Charter of Fundamental Rights], is capable of permitting the executing judicial authority to refrain, by way of exception, from giving effect to that European arrest warrant, on the basis of Article 1(3) of [the EAW Framework Decision]. 60. Thus, where, as in the main proceedings, the person in respect of whom a European arrest warrant has been issued, pleads, in order to oppose his surrender to the issuing judicial authority, that there are systemic deficiencies, or, at all events, generalised deficiencies, which, according to him, are liable to affect the independence of the judiciary in the issuing Member State and thus to compromise the essence of his fundamental right to a fair trial, the executing judicial authority is required to assess whether there is a real risk that the individual concerned will suffer a breach of that fundamental right, when it is called upon to decide on his surrender to the authorities of the issuing Member State (see, by analogy, judgment of5 April 2016 , Aranyosi and Caldararu , C-404/15 and C-659/15 PPU, EU:C:2016:198 , paragraph 88).”
“68. If, having regard to the requirements noted in paragraphs 62 to 67 of the present judgment, the executing judicial authority finds that there is, in the issuing Member State, a real risk of breach of the essence of the fundamental right to a fair trial on account of systemic or generalised deficiencies concerning the judiciary of that Member State, such as to compromise the independence of that State's courts, that authority must, as a second step, assess specifically and precisely whether, in the particular circumstances of the case, there are substantial grounds for believing that, following his surrender to the issuing Member State, the requested person will run that risk … (see, by analogy, in the context of Article 4 of the Charter, judgment of5 April 2016 , Aranyosi and Caldararu , C404/15 and C659/15 PPU, EU:C:2016:198 , paragraphs 92 and 94).”
“91. … a finding that there is a real risk of inhuman or degrading treatment by virtue of general conditions of detention in the issuing member state cannot lead, in itself, to the refusal to execute a European arrest warrant. 92. Whenever the existence of such a risk is identified, it is then necessary that the executing judicial authority make a further assessment, specific and precise, of whether there are substantial grounds to believe that the individual concerned will be exposed to that risk because of the conditions for his detention envisaged in the issuing member state. 93. The mere existence of evidence that there are deficiencies, which may be systemic or generalised, or which may affect certain groups of people, or which may affect certain places of detention, with respect to detention conditions in the issuing member state does not necessarily imply that, in a specific case, the individual concerned will be subject to inhuman or degrading treatment in the event that he is surrendered to the authorities of that member state. 94. Consequently, in order to ensure respect for article 4 of the Charter in the individual circumstances of the person who is the subject of the European arrest warrant, the executing judicial authority, when faced with evidence of the existence of such deficiencies that is objective, reliable, specific and properly updated, is bound to determine whether, in the particular circumstances of the case, there are substantial grounds to believe that, following the surrender of that person to the issuing member state, he will run a real risk of being subject in that member state to inhuman or degrading treatment, within the meaning of article 4.”
“72. Therefore, it is only if the European Council were to adopt a decision determining, as provided for in Article 7(2) TEU, that there is a serious and persistent breach in the issuing Member State of the principles set out in Article 2 TEU, such as those inherent in the rule of law, and the Council were then to suspend Framework Decision 2002/584 in respect of that Member State that the executing judicial authority would be required to refuse automatically to execute any European arrest warrant issued by it, without having to carry out any specific assessment of whether the individual concerned runs a real risk that the essence of his fundamental right to a fair trial will be affected.”
“73. Accordingly, as long as such a decision has not been adopted by the European Council, the executing judicial authority may refrain, on the basis of Article 1(3) of [the EAW Framework Decision], to give effect to a European arrest warrant issued by a Member State which is the subject of a reasoned proposal as referred to in Article 7(1) TEU only in exceptional circumstances where that authority finds, after carrying out a specific and precise assessment of the particular case, that there are substantial grounds for believing that the person in respect of whom that European arrest warrant has been issued will, following his surrender to the issuing judicial authority, run a real risk of breach of his fundamental right to an independent tribunal and, therefore, of the essence of his fundamental right to a fair trial. 74. In the course of such an assessment, the executing judicial authority must, in particular, examine to what extent the systemic or generalised deficiencies, as regards the independence of the issuing Member State's courts, to which the material available to it attests are liable to have an impact at the level of that State's courts with jurisdiction over the proceedings to which the requested person will be subject. 75. If that examination shows that those deficiencies are liable to affect those courts, the executing judicial authority must also assess, in the light of the specific concerns expressed by the individual concerned and any information provided by him, whether there are substantial grounds for believing that he will run a real risk of breach of his fundamental right to an independent tribunal and, therefore, of the essence of his fundamental right to a fair trial, having regard to his personal situation, as well as to the nature of the offence for which he is being prosecuted and the factual context that form the basis of the European arrest warrant.”
“76. Furthermore, the executing judicial authority must, pursuant to article 15(2) of Framework Decision 2002/584, request from the issuing judicial authority any supplementary information that it considers necessary for assessing whether there is such a risk. 77. In the course of such a dialogue between the executing judicial authority and the issuing judicial authority, the latter may, where appropriate, provide the executing judicial authority with any objective material on any changes concerning the conditions for protecting the guarantee of judicial independence in the issuing member state, material which may rule out the existence of that risk for the individual concerned. 78. If the information which the issuing judicial authority, after having, if need be, sought assistance from the central authority or one of the central authorities of the issuing member state, as referred to in article 7 of Framework Decision 2002/584 (see Aranyosi’s case[2016] QB 921 , para 97), has sent to the executing judicial authority does not lead the latter to discount the existence of a real risk that the individual concerned will su›er in the issuing member state a breach of his fundamental right to an independent tribunal and, therefore, of the essence of his fundamental right to a fair trial, the executing judicial authority must refrain from giving e›ect to the European arrest warrant relating to him.”
“79. In the light of the foregoing considerations, the answer to the questions referred is that Article 1(3) of [the EAW Framework Decision] must be interpreted as meaning that, where the executing judicial authority, called upon to decide whether a person in respect of whom a European arrest warrant has been issued for the purposes of conducting a criminal prosecution is to be surrendered, has material, such as that set out in a reasoned proposal of the Commission adopted pursuant to Article 7(1) TEU, 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's judiciary, that authority must determine, specifically and precisely, whether, having regard to his personal situation, as well as to the nature of the offence for which he is being prosecuted and the factual context that form the basis of the European arrest warrant, and in the light of the information provided by the issuing Member State pursuant to Article 15(2) of the framework decision, there are substantial grounds for believing that that person will run such a risk if he is surrendered to that State.”
“71. We grant each applicant permission to appeal. However, we reject the submissions made to date against extradition in each of the three cases. As matters stand at present, in our judgment there exists no general basis to decline extradition to Poland. However, by reason of the matters contained in the Commission's Reasoned Proposal and in the other material to which we have referred, there is sufficient concern about the independence of the Polish judiciary to mean that these applicants and others in a similar position should have the opportunity to advance reasons why they might have an exceptional case requiring individual ‘specific and precise assessment’ to see whether there are substantial grounds for believing they individually might run a real risk of a breach of their fundamental rights to a fair trial. We make it clear, following the approach of the Grand Chamber of the Luxembourg Court, that exceptional circumstances must be demonstrated. We indicate, on the basis of the limited material available to us, that these cases would appear unlikely to fulfil that test and that those sought to be extradited for ordinary criminal offences, with no political or other sensitive content, would seem unlikely to be able to establish the necessary risk. ”
“11. In his oral submissions (and Speaking Note), having adopted the written submissions, Mr Fitzgerald began by emphasising that if there was a general risk for all defendants before the Warsaw Regional/Circuit Court, there would be a flagrant breach of their Article 6 rights, and that must form a bar to such extradition. In that sense, it was wrong and potentially misleading to impose an ‘exceptionality’ element to the test. 12. So far as that submission goes, I would be prepared to accept it. If it could be established that ordinary criminal defendants as a category were at real risk of flagrant breaches of Article 6 standards then that would constitute a bar to extradition, and there could be no requirement of ‘exceptionality’ within such a cohort. However, it should be clear that the term was used by the CJEU (and by this Court) in the context where no such general risk had been established. It does not seem to me fruitful to continue any debate about the terms ‘exceptional’ or ‘exceptionality’.”
“172. The Commission is of the opinion that the situation described in the previous sections represents a clear risk of a serious breach by the Republic of Poland of the rule of law referred to in Article 2 TEU. The Commission comes to this finding after having considered the facts set out above. 173. The Commission observes that within a period of two years more than 13 consecutive laws have been adopted affecting the entire structure of the justice system in Poland: the Constitutional Tribunal, the Supreme Court, the ordinary courts, the national Council for the Judiciary, the prosecution service and the National School of Judiciary. The common pattern of all these legislative changes is that the executive or legislative powers have been systematically enabled to interfere significantly with the composition, the powers, the administration and the functioning of these authorities and bodies. The legislative changes and their combined effects put at serious risk the independence of the judiciary and the separation of powers in Poland which are key components of the rule of law. The Commission also observes that such intense legislative activity has been conducted without proper consultation of all the stakeholders concerned, without a spirit of loyal cooperation required between state authorities and without consideration for the opinions from a wide range of European and international organisations. 174. The Commission has carried out an extensive dialogue with the Polish authorities since January 2016 in order to find solutions to the concerns raised. Throughout this process the Commission has always substantiated its concerns in an objective and thorough manner. In line with the Rule of Law Framework, the Commission has issued an Opinion followed by three Recommendations regarding the rule of law in Poland. It has exchanged numerous letters and held meetings with the Polish authorities. The Commission has always made clear that it stood ready to pursue a constructive dialogue and has repeatedly invited the Polish authorities for further meetings to that end. However, in spite of these efforts, the dialogue has not removed the Commission's concerns. 175. Despite the issuing of three Recommendations by the Commission, the situation has deteriorated continuously. In particular: (1) The unlawful appointment of the President of the Constitutional Tribunal, the admission of the three judges nominated by the 8th term of the Sejm without a valid legal basis, the fact that one of these judges has been appointed as Vice-President of the Tribunal, the fact that the three judges that were lawfully nominated in October 2015 by the previous legislature have not been able to take up their function of judge in the Tribunal, as well as the subsequent developments within the Tribunal described above have de facto led to a complete recomposition of the Tribunal outside the normal constitutional process for the appointment of judges. For this reason, the Commission considers that the independence and legitimacy of the Constitutional Tribunal are seriously undermined and, consequently, the constitutionality of Polish laws can no longer be effectively guaranteed. The judgments rendered by the Tribunal under these circumstances can no longer be considered as providing an effective constitutional review. (2) The law on the National Council for the Judiciary and the law on the Supreme Court, also in combination with the law on the National School of Judiciary, and the law on the Ordinary Courts Organisation significantly increase the systemic threat to the rule of law as identified in the previous Recommendations. The main concerns are summarised as follows: (a) As regards the Supreme Court, – the compulsory retirement of a significant number of the current Supreme Court judges combined with the possibility of prolonging their active judicial mandate, as well as the new disciplinary regime for Supreme Court judges, structurally undermine the independence of the Supreme Court judges, whilst the independence of the judiciary is a key component of the rule of law; – the compulsory retirement of a significant number of the current Supreme Court judges also allows for a far reaching and immediate recomposition of the Supreme Court. That possibility raises concerns in relation to the separation of powers, in particular when considered in combination with the simultaneous reforms of the National Council for the Judiciary. In fact all new Supreme Court judges will be appointed by the President of the Republic on the recommendation of the newly composed National Council for the Judiciary, which will be largely dominated by the political appointees. As a result, the current parliamentary majority will be able to determine, at least indirectly, the future composition of the Supreme Court to a much larger extent than this would be possible in a system where existing rules on the duration of judicial mandates operate normally - whatever that duration is and with whichever state organ the power to decide on judicial appointments lies; – the new extraordinary appeal procedure raises concerns in relation to legal certainty and, when considered in combination with the possibility of a far reaching and immediate recomposition of the Supreme Court, in relation to the separation of powers. (b) As regards ordinary courts, – by decreasing the retirement age of judges while making prolongation of the judicial mandate conditional upon the discretionary decision of the Minister of Justice, the new rules undermine the principle of irremovability of judges which is a key element of the independence of judges; – the discretionary power of the Minister of Justice to appoint and dismiss presidents of courts without being bound by concrete criteria, with no obligation to state reasons, with no possibility for the judiciary to block these decisions and with no judicial review available may affect the personal independence of court presidents and of other judges. (c) As regards the National Council for the Judiciary, the concerns concerning the overall independence of the judiciary are increased by the termination of the mandate of all judges-members of the National Council for the Judiciary and by the reappointment of its judges-members according to a process which allows a high degree of political influence.”
“8. … As a result of the 2017 reform: • The judicial community in Poland lost the power to delegate representatives to the National Council of the Judiciary (the NCJ), and hence its influence on recruitment and promotion of judges. Before the 2017 reform 15 (out of 25) members of the NCJ were judges elected by their peers. Since the 2017 reform those members are elected by Parliament. Taken in conjunction with the immediate replacement, in early 2018, of all the members appointed under the old rules, this measure led to a far reaching politicisation of the NCJ; • Changes in the method of nomination of candidates to the position of the First President of the Supreme Court deprived the participation of the judges in the selection procedure of any meaningful effect and put the decision in the hands of the President of the Republic. At the same time, the Minister of Justice (who is, in the Polish system, also the Prosecutor General) obtained the power to appoint/dismiss court presidents of the lower courts at his discretion during the transitional period of six months. In 2017-2018 the Minister of Justice replaced over a hundred court presidents and vice-presidents. After this period, removal of court presidents remained in the hands of the Minister, with virtually no effective checks attached to this power.7 The Minister of Justice also obtained other “disciplinary” powers vis-à-vis court presidents, and presidents of higher courts, in turn, have now large administrative powers vis-à-vis presidents of lower courts. That created a hierarchical structure of subordination within the judiciary, in administrative matters, with the Minister of Justice/Prosecutor General at its top; • These measures were coupled with the reinforcement of the mechanisms of control within the judiciary: two new chambers within the Supreme Court were created in 2017: the Disciplinary Chamber and the Chamber of Extraordinary Review and Public Affairs (the Extraordinary Chamber). These new chambers were staffed with newly appointed judges, selected by the new NCJ, and entrusted with special powers - including the power of the Extraordinary Chamber to quash final judgments taken by lower courts or by the Supreme Court itself by way of extraordinary review, or the power of the Disciplinary Chamber to discipline other judges. That put these new chambers above all others and created de facto a ‘Supreme Court within a Supreme Court’.”
“10. The simultaneous and drastic reduction of the involvement of judges in the work of the National Council for the Judiciary, filling the new chambers of the Supreme Court with newly appointed judges, mass replacement of court presidents, combined with the important increase of the powers of the President of the Republic and of the Minister of Justice/Prosecutor General - and this was the result of the 2017 reform - was alarming and led to the conclusion that the 2017 reform significantly reduced the independence of the Polish judiciary vis-à-vis the Government and the ruling majority in Parliament.”
“11. In the 2017 Opinion the Venice Commission noted that ‘the Polish authorities were open to dialogue’ ([132]). Despite that, the reform was adopted and implemented without any major changes. Reorganisation of the NCJ and mass replacement of court presidents by the Minister of Justice was followed by an intensification of the disciplinary procedures against ordinary judges. Inquiries (‘explanatory proceedings’) were opened by the disciplinary officers in respect of more than forty judges who were vocal in criticizing the reform or who questioned the legitimacy of the newly created judicial chambers or of other judges appointed under the new rules.”
“152. … that may, by contrast, not be true once they are taken together, particularly if the abovementioned assessment as regards the [NJC] were to find that that body lacks independence in relation to the legislature and the executive.”
“17. In sum, the Polish legal order faces a schism between the old judicial institutions and judges, on one side, and, on the other, those bodies and judges who were created/appointed on the basis of the new rules introduced by the legislative amendments of 2017. There is a risk of legal chaos with the decisions of some courts not recognised as valid by other courts.”
“59. Unfortunately, some of the December 2019 amendments may be seen as further undermining the independence of the judiciary, while trying to resolve problems resulting from the reform of 2017. Thus, by virtue of those amendments, the judges’ freedom of speech and association is seriously curtailed. Polish courts will be effectively prevented from examining whether other courts within the country are ‘independent and impartial’ under the European rules. The participation of judges in the administration of justice is further reduced: bodies of judicial self-governance are replaced, in important matters, with the colleges composed of the court presidents appointed by the Minister of Justice. New disciplinary offences are introduced and the influence of the Minister of Justice on disciplinary proceedings is increased further. Appeal courts will no longer be able to assess the correct composition of lower level court chambers, depriving litigants of an important guarantee. Provisions are introduced which could further reduce the role of the judges of the Supreme Court in the process of selection of the First President. Finally, some of those provisions may be interpreted as having a nullifying effect in respect of the judgments which are already final. 60. The Venice Commission understands that Polish legal order faces a difficult situation: as a result of the controversial reform of 2017, “old” judicial institutions de facto refused to recognise the legitimacy of the “new” ones. This “legal schism” should be quickly resolved, which will certainly require further legislative amendments. The amendments of December 2019, however, are not suitable to achieve this goal. They diminish judicial independence and put Polish judges into the impossible situation of having to face disciplinary proceedings for decisions required by the ECHR, the law of the European Union, and other international instruments. Thus, the Venice Commission recommends not to adopt those amendments. 61. Other solutions have to be found. In order to avoid further deepening of the crisis, the Venice Commission invites the Polish legislator to seriously consider the implementation of the main recommendations contained in the 2017 Opinion of the Venice Commission, namely: • to return to the election of the 15 judicial members of the National Council of the Judiciary (the NCJ) not by Parliament but by their peers; • to significantly revise the composition and internal structure of the two newly created ‘super-chambers’, and reduce their powers, in order to transform them into normal chambers of the Supreme Court; • to return to the pre-2017 method of election of candidates to the position of the First President of the Supreme Court, or to develop a new model where each candidate proposed to the President of the Republic enjoys support of a significant part of the Supreme Court judges; • to restore the powers of the judicial community in the questions of appointments, promotions, and dismissal of judges; to ensure that court presidents cannot be appointed. 62. Further legislative measures will be required to implement those recommendations, and the Venice Commission remains at the disposal of the Polish authorities for further assistance in this matter.” “The new law on the judiciary undermines the judicial independence of Polish judges and is incompatible with the primacy of EU law. Moreover, the new law prevents Polish courts from directly applying certain provisions of EU law protecting judicial independence, and from putting references for preliminary rulings on such questions to the Court of Justice. After carrying out an analysis of the legislation concerned, the Commission concluded that several elements of the new law violate EU law.”
“In 2017, as part of a package of legal changes to the judiciary, a disciplinary system was created in Poland to ensure that judges were subservient to the political will of the authorities. Piotr Schab and his deputies, Przemysław W. Radzik and Michał Lasota, the disciplinary prosecutor of common court judges, appointed by the Minister of Justice and Prosecutor General, almost from the moment of their appointment, have targeted judges who opposed unconstitutional changes in the judiciary. There can be many pretexts: a public statement, putting on a T-shirt with the inscription ‘Constitution’, asking the Court of Justice of the European Union for a preliminary ruling, or a verdict which does not in line with the intention of the prosecution or political authority. Disciplinary proceedings are by no means the only repressions that affect judges who demand that other authorities respect the rule of law in Poland. Such judges either have their departments closed or the scope of their activities is changed so that they have to rule on cases with which they have not previously been in contact. It is easier in such a situation to make a mistake and give a pretext for disciplinary proceedings. This is a report which is a compilation of the most blatant cases of repression against Polish judges.”
“1. The Court of Justice of the European Union shall include the Court of Justice, the General Court and specialised courts. It shall ensure that in the interpretation and application of the Treaties the law is observed. Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law.”
“15. The referring court considers, on the basis, inter alia, of those new matters, that the independence of the Polish courts, including of the court which issued the European arrest warrant at issue in the main proceedings, is not ensured. In the opinion of the referring court, Polish judges run the risk of being the subject of disciplinary proceedings before a body whose independence is not ensured, in particular where those judges determine whether a judge or a court satisfies the safeguards of independence required by EU law.”
“(1) Do [the EAW Framework Decision], the second paragraph of Article 19(1) TEU and/or the second paragraph of Article 47 of the Charter indeed preclude the executing judicial authority from executing a [European arrest warrant] issued by a court where the national legislation of the issuing Member State has been amended after that [European arrest warrant] was issued such that the court no longer meets the requirements of effective or actual judicial protection since that legislation no longer guarantees the independence of that court ? (2) Do [the EAW Framework Decision] and the second paragraph of Article 47 of the Charter indeed preclude the executing judicial authority from executing a [European arrest warrant] when it has established that there is a real risk in the issuing Member State of breach of the fundamental right to an independent tribunal for any suspected person – and thus also for the requested person – irrespective of which courts of that Member State have jurisdiction over the proceedings to which the requested person will be subject and irrespective of the requested person’s personal situation, the nature of the offence for which he is being prosecuted and the factual context that forms the basis of the [European arrest warrant], where that real risk is related to the fact that the courts of the issuing Member State are no longer independent on account of systemic and generalised deficiencies ? (3) Do [the EAW Framework Decision] and the second paragraph of Article 47 of the Charter indeed preclude the executing judicial authority from executing a [European arrest warrant] when it has established that: – there is a real risk in the issuing Member State of breach of the fundamental right to a fair trial for any suspected person, where that risk is connected with systemic and generalised deficiencies relating to the independence of that Member State’s judiciary, – those systemic and generalised deficiencies are therefore not only liable to have negative consequences, but actually do have such consequences for the courts of that Member State with jurisdiction over the proceedings to which the requested person will be subject, and – there are therefore serious and established grounds for believing that the requested person runs a real risk of breach of his fundamental right to an independent tribunal and, therefore, of the essence of his fundamental right to a fair trial, even though, aside from those systemic and generalised deficiencies, the requested person has not expressed any specific concerns, and even though the requested person’s personal situation, the nature of the offences for which he is being prosecuted and the context that forms the basis of the [European arrest warrant], aside from those systemic and generalised deficiencies, do not give rise to fears that the executive and/or legislature will exert concrete pressure on or influence his trial ?”
“Do Framework Decision [2002/584], the second subparagraph of Article 19(1) [TEU] and/or the second paragraph of Article 47 of the [Charter] indeed preclude an executing judicial authority from executing a European arrest warrant issued by a court in the case where that court does not meet the requirements of effective judicial protection/actual judicial protection, and at the time of issuing the European arrest warrant already no longer met those requirements, because the legislation in the issuing Member State does not guarantee the independence of that court, and at the time of issuing the European arrest warrant already no longer guaranteed that independence ?”
“1. The issuing judicial authority shall be the judicial authority of the issuing Member State which is competent to issue a European arrest warrant by virtue of the law of that State.”
“59. To accept that systemic or generalised deficiencies so far as concerns the independence of the issuing Member State’s judiciary, however serious they may be, give rise to the presumption that, with regard to the person in respect of whom a European arrest warrant has been issued, there are substantial grounds for believing that that person will run a real risk of breach of his or her fundamental right to a fair trial if he or she is surrendered to that Member State – which would justify the non-execution of that arrest warrant – would lead to an automatic refusal to execute any arrest warrant issued by that Member State and therefore to a de facto suspension of the implementation of the European arrest warrant mechanism in relation to that Member State, whereas the European Council and the Council have not adopted the decisions envisaged in the preceding paragraph. 60. Consequently, in the absence of such decisions, although the finding by the executing judicial authority of a European arrest warrant that there are indications of systemic or generalised deficiencies so far as concerns the independence of the judiciary of the issuing Member State, or that there has been an increase in such deficiencies, must, as the Advocate General noted, in essence, in point 76 of his Opinion, prompt that authority to exercise vigilance, it cannot, however, rely on that finding alone in order to refrain from carrying out the second step of the examination referred to in paragraphs 53 to 55 of this judgment 61. It is for that authority, in the context of that second step, to assess, where appropriate in the light of such an increase, whether, having regard to the personal situation of the person whose surrender is requested by the European arrest warrant concerned, the nature of the offence for which he or she is being prosecuted and the factual context in which the arrest warrant was issued, such as statements by public authorities which are liable to interfere with the way in which an individual case is handled, and having regard to information which may have been communicated to it by the issuing judicial authority pursuant to Article 15(2) of [the EAW Framework Decision], there are substantial grounds for believing that that person will run a real risk of breach of his or her right to a fair hearing once he or she has been surrendered to the issuing Member State. If that is the case, the executing judicial authority must refrain, pursuant to Article 1(3) of that framework decision, from giving effect to the European arrest warrant concerned. Otherwise, it must execute that warrant, in accordance with the obligation of principle laid down in Article 1(2) of that framework decision.”
“69. In the light of all the foregoing considerations, the answer to the questions referred is that Article 6(1) and Article 1(3) of [the EAW Framework Decision] must be interpreted as meaning that, where the executing judicial authority, which is called upon to decide whether a person in respect of whom a European arrest warrant has been issued is to be surrendered, has evidence of systemic or generalised deficiencies concerning the independence of the judiciary in the Member State that issues that arrest warrant which existed at the time of issue of that warrant or which arose after that issue, that authority cannot deny the status of ‘issuing judicial authority’ to the court which issued that arrest warrant and cannot presume that there are substantial grounds for believing that that person will, if he or she is surrendered to that Member State, run a real risk of breach of his or her fundamental right to a fair trial, guaranteed by the second paragraph of Article 47 of the Charter, without carrying out a specific and precise verification which takes account of, inter alia, his or her personal situation, the nature of the offence in question and the factual context in which that warrant was issued, such as statements by public authorities which are liable to interfere with how an individual case is handled.”
“- Article 267 TFEU [Treaty on the Functioning of the European Union] and Article 4(3) TEU must be interpreted as precluding such amendments where it is apparent – a matter which it is for the referring court to assess on the basis of all the relevant factors – that those amendments have had the specific effects of preventing the Court from ruling on questions referred for a preliminary ruling such as those put to it by that court and of precluding any possibility of a national court repeating in the future questions similar to those questions; - the second subparagraph of Article 19(1) TEU must be interpreted as precluding such amendments where it is apparent – a matter which it is for the referring court to assess on the basis of all the relevant factors – that those amendments are capable of giving rise to legitimate doubts, in the minds of subjects of the law, as to the imperviousness of the judges appointed, by the President of the Republic of Poland, on the basis of those decisions of the Krajowa Rada Sądownictwa (National Council of the Judiciary), to external factors, in particular, to the direct or indirect influence of the legislature and the executive, and as to their neutrality with respect to the interests before them and, thus, may lead to those judges not being seen to be independent or impartial with the consequence of prejudicing the trust which justice in a democratic society governed by the rule of law must inspire in subjects of the law.”
“177. … Having regard to the variety of legal and factual issues arising in the above group of cases, the Court would emphasise at the outset that its task in the present case is not to consider the legitimacy of the reorganisation of the Polish judiciary as a whole but to assess the circumstances relevant for the process of appointment of judges to the Disciplinary Chamber of the Supreme Court following the entry into force of the 2017 Act on the Supreme Court establishing that Chamber.”
“178. The Court further notes that it is a matter of common knowledge that the reorganisation of the judiciary in Poland initiated by the Government in 2017 and implemented by the successive amending laws … has, since then, been the subject not only of intense public debate in Poland and at European level but also of numerous proceedings before the Polish courts and the CJEU, of other actions before the European Union’s institutions, including the procedure under Article 7(1) TEU before the European Commission, of European Parliament resolutions, of the PACE monitoring procedure and its resolutions, and of various reports of the Council of Europe’s bodies, the UN, the OSCE/ODIHR and the European Networks of Councils for the Judiciary] ...”
“222. In the first place, there must, in principle, be a manifest breach of the domestic law, in the sense that the breach must be objectively and genuinely identifiable. However, the absence of such a breach does not rule out the possibility of a violation of the right to a tribunal established by law, since a procedure that is seemingly in compliance with the domestic rules may nevertheless produce results that are incompatible with the object and purpose of that right. If this is the case, the Court must pursue its examination under the second and third limbs of the test set out below, as applicable, in order to determine whether the results of the application of the relevant domestic rules were compatible with the specific requirements of the right to a ‘tribunal established by law’ within the meaning of the Convention ( Ástráðsson , [244]-[245]). 223. Secondly, the breach in question must be assessed in the light of the object and purpose of the requirement of a ‘tribunal established by law’, namely to ensure the ability of the judiciary to perform its duties free of undue interference and thereby to preserve the rule of law and the separation of powers. Accordingly, breaches of a purely technical nature that have no bearing on the legitimacy of the appointment process must be considered to fall below the relevant threshold. To the contrary, breaches that wholly disregard the most fundamental rules in the appointment or breaches that may otherwise undermine the purpose and effect of the ‘established by law’ requirement must be considered to be in violation of that requirement (ibid., [246]). 224. Thirdly, the review conducted by national courts, if any, as to the legal consequences - in terms of an individual’s Convention rights - of a breach of a domestic rule on judicial appointments plays a significant role in determining whether such a breach amounted to a violation of the right to a ‘tribunal established by law’, and thus forms part of the test itself. The assessment by the national courts of the legal effects of such a breach must be carried out on the basis of the relevant Convention case-law and the principles derived therefrom (Ibid, [248] and [250]).”
“225. In the present case the alleged violation of the right to a ‘tribunal established by law’ concerns the Disciplinary Chamber of the Supreme Court, constituted following the recent reorganisation of the Polish judicial system. In particular, the applicant alleged that the judges of that Chamber were appointed by the President of Poland upon the NCJ’s recommendation in manifest breach of the domestic law and the principles of the rule of law, separation of powers and independence of the judiciary. 226. Accordingly, the Court will examine whether the fact that the applicant’s case was heard by the Disciplinary Chamber of the Supreme Court - a court to which all the sitting judges were appointed in the impugned procedure - gave rise to a violation of the applicant’s right to a ‘tribunal established by law’. It will do so in the light of the three-step test formulated by the Court in the case of Guðmundur Andri Ástráðsson (ibid., § 243).”
“264. Having regard to all the above considerations, and in particular to the convincing and forceful arguments of the Supreme Court in the judgment of5 December 2019 and the resolution of23 January 2020 , and that court’s conclusions as to the procedure for judicial appointments to the Disciplinary Chamber being contrary to the law - conclusions reached after a thorough and careful evaluation of the relevant Polish law from the perspective of the Convention’s fundamental standards and of EU law, and in application of the CJEU’s guidance and case-law - the Court finds it established that in the present case there was a manifest breach of the domestic law for the purposes of the first step of the Ástráðsson test.”
“280. The Court has established that there was a manifest breach of the domestic law which adversely affected the fundamental rules of procedure for the appointment of judges to the Disciplinary Chamber of the Supreme Court, since the appointment was effected upon a recommendation of the NCJ, established under the 2017 Amending Act, a body which no longer offered sufficient guarantees of independence from the legislative or executive powers. The irregularities in the appointment process compromised the legitimacy of the Disciplinary Chamber to the extent that, following an inherently deficient procedure for judicial appointments, it did lack and continues to lack the attributes of a “tribunal” which is “lawful” for the purposes of Article 6(1). The very essence of the right at issue has therefore been affected. 281. In the light of the foregoing, and having regard to its overall assessment under the three-step test set out above, the Court concludes that the Disciplinary Chamber of the Supreme Court, which examined the applicant’s case, was not a ‘tribunal established by law’. 282. Accordingly, there has been a violation ofArticle 6(1) of the Convention in that regard.”
“… by failing to guarantee the independence and impartiality of the Disciplinary Chamber which is called upon to rule, at first instance and at second instance, in disciplinary cases concerning judges of the Sąd Najwyższy (Supreme Court) and, depending on the case, either at second instance or both at first instance and at second instance, in disciplinary cases concerning judges of the ordinary courts and by thereby undermining the independence of those judges at, what is more, the cost of a reduction in the protection of the value of the rule of law in that Member State for the purposes of the case-law of the Court referred to in paragraph 51 of the present judgment, the Republic of Poland has failed to fulfil its obligations under the second subparagraph of Article 19(1) TEU.”
“Having regard to all the foregoing considerations, the Court considers it to be established that, in the particular context resulting from the recent reforms that have affected the Polish judiciary and the disciplinary regime applicable to judges of the ordinary courts, and in particular having regard to the fact that the independence and impartiality of the judicial body with jurisdiction to rule in disciplinary proceedings concerning those judges are not guaranteed, the definitions of disciplinary offence contained in Article 107 § 1 of the Law on the ordinary courts and Article 97 §§ 1 and 3 of the new Law on the Supreme Court do not help to avoid that disciplinary regime being used in order to create, with regard to those judges who are called upon to interpret and apply EU law, pressure and a deterrent effect, which are likely to influence the content of their decisions. Those provisions thus undermine the independence of those judges and do so, what is more, at the cost of a reduction in the protection of the value of the rule of law in Poland within the meaning of the case-law referred to in paragraph 51 of the present judgment, in breach of the second subparagraph of Article 19(1) TEU.”
“176. It follows from all of the foregoing that Article 110(3) and Article 114(7) of the Law on the ordinary courts, inasmuch as they confer on the President of the Disciplinary Chamber the discretionary power to designate the disciplinary tribunal with territorial jurisdiction to hear disciplinary proceedings in respect of judges of the ordinary courts, that is to say, judges who may be called upon to interpret and apply EU law, do not meet the requirement derived from the second subparagraph of Article 19(1) TEU that such cases must be examined by a tribunal ‘established by law’.”
“202. It follows from all of the foregoing that the second sentence of Article 112b § 5 of the Law on the ordinary courts, inasmuch as it undermines the independence of judges of the Polish ordinary courts by failing to ensure that their case concerning disciplinary proceedings can be heard within a reasonable time, does not meet the requirements derived from the second subparagraph of Article 19(1) TEU. Consequently, the first part of the fourth complaint must be upheld inasmuch as it relates to that provision of national legislation. … 213. National procedural rules, such as those covered by the second part of the present complaint, may, especially where, as in the present case, they are applied in the context of a disciplinary regime displaying the shortcomings referred to in paragraph 188 of the present judgment, prove to be such as to increase still further the risk of the disciplinary regime applicable to those whose task is to adjudicate being used as a system of political control of the content of judicial decisions. The judges concerned may be led to fear, if they rule in a particular way in the cases before them, that disciplinary proceedings will be brought against them which thus fail to provide guarantees capable of meeting the requirements of a fair trial and, in particular, the requirement relating to respect for the rights of the defence. In this way, the restrictions on the rights of the defence arising from those procedural rules undermine the independence of judges of the Polish ordinary courts and thus do not meet the requirements derived from the second subparagraph of Article 19(1) TEU.”
“229. In the present case, it must be borne in mind that it is already apparent from the examination which led the Court to uphold the first complaint brought by the Commission that the definitions of the disciplinary offence contained in the provisions of Article 107(1) of the Law on the ordinary courts and Article 97(1) and (3) of the new Law on the Supreme Court do not meet the requirements derived from the second subparagraph of Article 19(1) TEU, since they give rise to the risk that the disciplinary regime at issue might be used for the purpose of creating, in respect of judges of the Polish ordinary courts, pressure and a deterrent effect which are likely to influence the content of the judicial decisions which those judges are called upon to give. 230 . Such a risk also concerns the decisions by which a national court is called upon to choose to exercise its discretion under Article 267 TFEU to submit a request for a preliminary ruling to the Court of Justice or, where appropriate, to comply with its obligation to make such a reference for a preliminary ruling under that provision. 231. As attested to by the examples highlighted by the Commission … the practice initiated by the Disciplinary Officer confirms that such a risk has, to date, materialised through the opening of investigations concerning decisions whereby Polish ordinary courts have submitted requests for a preliminary ruling to the Court of Justice; investigations which have included, in particular, interviewing the judges concerned and sending those judges questionnaires concerning the question whether the references for a preliminary ruling which had thus been made by those judges were likely to have given rise to disciplinary offences.”
“233 . It must be borne in mind, in that regard, first, that strict compliance with Member State obligations derived from Article 267 TFEU is required in respect of all State authorities and, therefore, in particular, in respect of a body which, like the Disciplinary Officer, is responsible for investigating, if necessary under the authority of the Minister for Justice, disciplinary proceedings that may be brought against judges. Second, as has been argued by both the Commission and the Member States intervening in support of the form of order sought by that institution, the mere fact that the Disciplinary Officer conducts investigations under the conditions referred to in paragraph 231 of the present judgment is sufficient to give concrete expression to the risk of forms of pressure and of a deterrent effect referred to in paragraph 229 of the present judgment and to undermine the independence of the judges who are the subject of those investigations. 234 . It follows that the fifth complaint, alleging that the Republic of Poland has failed to fulfil its obligations under the second and third paragraphs of Article 267 TFEU by allowing the right of courts and tribunals to submit requests for a preliminary ruling to the Court of Justice to be restricted by the possibility of triggering disciplinary proceedings, must be upheld.”
“2.2 According to the Constitutional Tribunal, the ECtHR judgment of7 May 2021 , to the extent to which it refers to the Constitutional Tribunal, is based on arguments testifying to the Court’s ignorance of the Polish legal system, including the fundamental constitutional assumptions specifying the position, system and role of the Polish constitutional court. To this extent, it was issued without legal grounds, overstepping the ECtHR’s jurisdiction, and constitutes unlawful interference in the domestic legal order, in particular in issues which are outside the ECtHR’s jurisdiction; for these reasons it must be considered as a non-existent judgment (sententia non existens). 2.3 In its judgment of7 May 2021 , the ECtHR unreasonably overstepped its jurisdiction by assessing the legality of the formation of the membership of the Constitutional Tribunal. This is an unprecedented encroachment onto the jurisdiction of the constitutional authorities of the Republic of Poland - the Sejm, which elects the judge, and the President, before whom the elected judge takes the oath. … … any attempt to undermine the status of Constitutional Tribunal judges, either by domestic or international bodies, constitutes a material breach of the rights of the Sejm and the President, as well as an infringement of the constitutional principle of the separation and balancing of powers.”
“2.4. The standard of examination in the proceedings before the ECtHR, which ended in the judgment of7 May 2021 , wasArticle 6(1) ECHR … The ECtHR considered this provision to be an adequate standard of examination for assessing whether the proceedings before the Constitutional Tribunal in the case that lay at the foundations of the judgment of7 May 2021 satisfied the Convention standard of the right to a tribunal previously established by law set out therein. The above assumption is a result of the ignorance of the Polish legal order, including the provisions of constitutional rank, determining the establishment and powers of the Constitutional Tribunal.Article 6(1) ECHR unequivocally provides for the right to a court in an individual civil or criminal case. ‘There is no doubt that proceedings before the Constitutional Tribunal are neither criminal nor civil proceedings in the meaning ofArticle 6 ECHR ’ (L. Bosek, M. Wild, komentarz do art. 79 Konstytucji [in:] Konstytucja RP. Tom I. Komentarz do art. 1–86, ed. M. Safjan, L. Bosek, Warsaw 2016, Legalis, Nb 13). Therefore, deciding on such matters does not lie within the competence of the Constitutional Tribunal, which is not a court in the meaning ofArticle 6(1) ECHR . This unambiguously arises from the constitutional position of the Tribunal and its constitutional competences. 2.5 In view of the clear instruction contained in Article 10(2) of the Constitution, the Constitutional Tribunal is a body of the judicial authority, although it does not exercise the administration of justice in the sense of adjudicating on individual civil, criminal or administrative cases. In accordance with Article 175(1) of the Constitution, the exclusive competence in this respect rests with the Supreme Court, the ordinary courts, the administrative courts and the military courts, which exercise the administration of justice in the Republic of Poland … 2.6 … the competence of the Tribunal does not allow it to be considered to be a court adjudicating on individual disputes in the meaning ofArticle 6(1) ECHR …”
“57. I agree with the referring court that, while the situation obtaining at the time when judgment was given in Minister for Justice and Equality (Deficiencies in the system of justice) [25 July 2018 ] was concerning, the subsequent data appear to point to the worsening of that situation. 25 ”
“In its report of September 2020 on the situation regarding the rule of law in the EU, the Commission notes that, in Poland, ‘the reforms, impacting the Constitutional Tribunal, the Supreme Court, ordinary courts, the National Council for the Judiciary and the prosecution service, have increased the influence of the executive and legislative powers over the justice system and therefore weakened judicial independence’. Commission Staff Working Document, 2020 Rule of Law Report, Country Chapter on the rule of law situation in Poland (SWD(2020) 320 final).”
“In the light of increased systemic or generalised deficiencies, and in the absence of a formal determination by the European Council, the Rechtbank Amsterdam (District Court, Amsterdam) must, therefore, be even more rigorous in its examination of the circumstances pertaining to the EAW which it has been requested to execute, but it is not exempt from the duty to carry out that examination in particular.”
“The Commission is deeply concerned by the decision of the Polish Constitutional Tribunal, which states that the interim measures ordered by the Court of Justice of the European Union in the area of the functioning of the judiciary, are inconsistent with the Polish Constitution. This decision reaffirms our concerns about the state of the rule of law in Poland. The Commission has always been very clear on this matter and reaffirms once more: · EU law has primacy over national law; · All decisions by the European Court of Justice, including orders for interim measures, are binding on all Member States' authorities and national courts. The rights of EU citizens and businesses must be protected in the same way across all Member States. The European Commission expects Poland to ensure that all decisions of the European Court of Justice are fully and correctly implemented. This includes also yesterday's Court order to impose the interim measures on Poland to immediately suspend the application of certain provisions of the law of December 2019 on the judiciary, including on the functioning of the Disciplinary Chamber of the Supreme Court. The Commission will not hesitate to make use of its powers under the Treaties to safeguard the uniform application and integrity of Union law.”
“1. The executing judicial authority shall decide, within the time-limits and under the conditions defined in this Framework Decision, whether the person is to be surrendered. 2. If the executing judicial authority finds the information communicated by the issuing Member State to be insufficient to allow it to decide on surrender , it shall request that the necessary supplementary information, in particular with respect to Articles 3 to 5 and Article 8, be furnished as a matter of urgency and may fix a time limit for the receipt thereof, taking into account the need to observe the time limits set in Article 17. 3. The issuing judicial authority may at any time forward any additional useful information to the executing judicial authority.”
“75. If that examination shows that those deficiencies are liable to affect those courts, the executing judicial authority must also assess, in the light of the specific concerns expressed by the individual concerned and any information provided by him, whether there are substantial grounds for believing that he will run a real risk of breach of his fundamental right to an independent tribunal and, therefore, of the essence of his fundamental right to a fair trial, having regard to his personal situation, as well as to the nature of the offence for which he is being prosecuted and the factual context that form the basis of the European arrest warrant. 76. Furthermore, the executing judicial authority must, pursuant to article 15(2) of Framework Decision 2002/584, request from the issuing judicial authority any supplementary information that it considers necessary for assessing whether there is such a risk”
“… [has] regard to his personal situation, as well as to the nature of the offence for which he is being prosecuted and the factual context that form the basis of the European arrest warrant.”
“68. If, having regard to the requirements noted in paras 62-67 of the present judgment, the executing judicial authority finds that there is, in the issuing member state, a real risk of breach of the essence of the fundamental right to a fair trial on account of systemic or generalised deficiencies concerning the judiciary of that member state, such as to compromise the independence of that state’s courts, that authority must , as a second step, assess specifically and precisely whether, in the particular circumstances of the case, there are substantial grounds for believing that, following his surrender to the issuing member state, the requested person will run that risk: see, by analogy, in the context of article 4 of the Charter, Aranyosi ’s case[2016] QB 921 , paras 92 and 94. … 72. Therefore, it is only if the European Council were to adopt a decision determining, as provided for in article 7(2)EU, that there is a serious and persistent breach in the issuing member state of the principles set out in article 2EU, such as those inherent in the rule of law, and the council were then to suspend Framework Decision 2002/584 in respect of that member state that the executing judicial authority would be required to refuse automatically to execute any European arrest warrant issued by it, without having to carry out any specific assessment of whether the individual concerned runs a real risk that the essence of his fundamental right to a fair trial will be affected.”
“36. … the ‘systemic … or … generalised deficiencies’ in connection with independence of the judiciary are not enough, without more, to prevent extradition. The executing judicial authority must assess in respect of the individual sought to be extradited whether there is a real risk of "breach" or "compromise" of the "essence of his fundamental right to a fair trial." The focus becomes whether the individual concerned, given the nature of the proceedings which he faces on return, faces a substantial risk of being denied the essence of his fundamental right to a fair trial.”
“48. What the national court is now asking is whether, on account of the increased systemic or generalised deficiencies in the issuing Member State, it may forego the second stage of that two-part examination. 49. If that is the case, there would be no need for the executing judicial authority to examine the circumstances of the case: it would simply be able to bring the surrender procedure to an end if the deficiencies are of such a magnitude that they equate to the absence in the issuing Member State of a judicial authority worthy of that name. 50. No matter how thought-provoking the solution proposed by the referring court may be, it is not compatible with that already provided by the Court …”
“53. … the possibility of refusing to execute a European arrest warrant on the basis of Article 1(3) of Framework Decision 2002/584, as interpreted in [LM] presupposes a two-step examination. 54. In the context of a first step, the executing judicial authority of the European arrest warrant in question must determine whether there is objective, reliable, specific and properly updated material 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’s judiciary (see, to that effect, judgment of25 July 2018 , Minister for Justice and Equality (Deficiencies in the system of justice) , C‑216/18 PPU, EU:C:2018:586 , paragraph 61). 55. In the context of a second step, that authority must determine, specifically and precisely, to what extent those deficiencies are liable to have an impact at the level of the courts of that Member State which have jurisdiction over the proceedings to which the requested person will be subject and 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 that arrest warrant was issued, and in the light of any information provided by that Member State pursuant to Article 15(2) of Framework Decision 2002/584, there are substantial grounds for believing that that person will run such a risk if he or she is surrendered to that Member State (see, to that effect, judgment of25 July 2018 , Minister for Justice and Equality (Deficiencies in the system of justice) , C‑216/18 PPU, EU:C:2018:586 , paragraphs 74 to 77). 56. It should be pointed out that, as was noted in paragraphs 53 to 55 of this judgment, the two steps of that examination involve an analysis of the information obtained on the basis of different criteria, with the result that those steps cannot overlap with one another.”
“59. To accept that systemic or generalised deficiencies so far as concerns the independence of the issuing Member State’s judiciary, however serious they may be, give rise to the presumption that, with regard to the person in respect of whom a European arrest warrant has been issued, there are substantial grounds for believing that that person will run a real risk of breach of his or her fundamental right to a fair trial if he or she is surrendered to that Member State – which would justify the non-execution of that arrest warrant – would lead to an automatic refusal to execute any arrest warrant issued by that Member State and therefore to a de facto suspension of the implementation of the European arrest warrant mechanism in relation to that Member State, whereas the European Council and the Council have not adopted the decisions envisaged in the preceding paragraph [ie, suspension under Article 7 TEU].”
“62. It is clear that in answering the questions asked by this Court, the CJEU expressly did not accept that a finding of systemic and generalised breaches was sufficient to establish that the individual concerned will run the risk of a breach of the essence of the fundamental right to a fair trial (in its findings at para 69). Neither the respondent's nor the IHREC's submissions address that vital finding in the judgment of the Court of Justice of the European Union. In my view, the meaning of para 69 is copper fastened later in the judgment by the statement that even if the deficiencies are found to operate at the level of the proposed trial court, the executing judicial authority was still required to assess, in light of specific concerns and information expressed and provided by the individual, whether there were substantial grounds for believing that he will run a real risk of breach of his fundamental right to an independent tribunal and therefore of the essence of his fundamental right to a fair trial. This assessment has to have regard to his personal situation, as well as to the nature of the offence for which he is being prosecute and the factual context that form the basis of the European arrest warrant.”
“63. Mr Fitzgerald accepts that the bar of ‘flagrant denial of justice’ is set very high, but he submits that it is reached on the facts of this case. He submits that there are a number of features of what occurred in Laos which, taken together, lead to this conclusion. But he says that there is one feature which stands out and which alone suffices. This is the fact that the court which convicted and sentenced the claimant was neither independent nor impartial. Mr Fitzgerald submits that this fact alone necessarily means that the claimant suffered a flagrant denial of justice such that the conviction was not by a ‘competent court’ within the meaning ofarticle 5 of the ECHR .”
“99. It is a striking fact that there is no case of which we are aware in which this test has been successfully invoked in any context in relation to article 6 on the grounds of lack of independence and impartiality of a court. We recognise that judicial independence and impartiality are cornerstones of a democratic society and that their absence will without more involve a breach of article 6. But we cannot accept that lack of judicial independence and impartiality will necessarily involve a flagrant denial of justice or the "nullification or destruction of the very essence of the right guaranteed" by article 6. Whether the lack of independence and impartiality has that effect must depend on the particular facts of the case, examined critically as a whole . Regrettably, there are many states throughout the world where judges are less independent and less impartial than they are in the UK and other democratic societies which are fully committed to the rule of law. But even where the judiciary are not fully independent and impartial, it is possible for a trial to take place which does not involve the complete nullification or destruction of the very essence of the right guaranteed by article 6.”
“55. It is very difficult to comment on this issue. We do not run statistics. We do not notice the effects of the reforms on our practice and criminal trials. It is also difficult to state whether in any other case, which we do not know personally, such an effect occurred. We were not involved in a trial during which we would have any doubts regarding judge’s independence, therefore we did not question his/ her nomination by NJC.”
“No relevant events took place in courts in Gniezno and Białystok in respective period. Also, there is no new statistical data to supplement the previous report.”