It should not be a matter of course that countries surrender their own nationals (or persons residing there) at the request of another country to be tried there or to serve a sentence. After all, that other country may have very different views on the law and on how convicted persons are punished. The surrendered could -from the perspective of the surrendering country- be exposed to injustice. 

Nevertheless, from common ideals about the rule of law and fair trials, among other things, countries within the European Union have agreed to recognise and trust each other's legal systems. Because of this principle of mutual trust, surrender requests are subjected to less critical scrutiny and surrender procedures can go a lot faster and easier. 

But there is still a test. In the Netherlands, by the International Legal Assistance Chamber in Amsterdam (IRK). Before a European Arrest Warrant (EAW) is followed, it is assessed whether it meets the requirements of the law and whether there are no grounds for refusal. In short: Not every criminal offence for which surrender is requested is actually authorised. A surrender request should also be rejected if, based on concrete facts or circumstances, it can be established that that person runs a real risk that his fundamental right to independent justice will be violated after surrender. That determination will not be made quickly, given the principle of trust, but that now seems to be changing. 

Without an independent judiciary, there can be no rule of law. Judges should apply the law independently and impartially. The government should also abide by the law. Judges should be able to make decisions that will not please everyone in society. Decisions to the disadvantage, but certainly also to the advantage of a defendant. Judges should not be pressurised by politics or ministries. If they have to fear for their jobs, disciplinary action, or political reckoning while doing their job, there can no longer be any independence. If a judge has his or her own agenda in making a decision, the litigant cannot be said to have had a fair trial. 

But the independence of the judiciary is now in bad shape in Poland. Since the Law and Justice party (yes!?) came to power, more than 100 judges have been replaced by the Minister of Justice in Poland, while these newly appointed (vice) presidents have in turn replaced individuals who held crucial positions within the courts. Several Polish judges have been disciplined on the basis of the content of their work or because they exercised the right to freedom of expression. Heavy criticism from top Polish courts on the functioning of the Judicial Council and the disciplinary chamber is dismissed by the Polish Ministry of Justice. 

On 31 July 2020, the International Legal Assistance Chamber (IRK) of the Amsterdam District Court issued a unique decision in a case in which the surrender of an individual was requested by Poland. The court found that structural and fundamental flaws related to the judiciary, jeopardise the independence of the courts. Therefore, the Amsterdam court decided to ask the Court of Justice whether it may therefore reject Poland's surrender request. The court could probably also have decided on its own, but for reasons of uniformity in Europe, it preferred a decision by a European overarching body. 

Persons wanted by the Polish Judicial Authorities will be given clarity within three to four months. If the Court of Justice shares the Amsterdam court's opinion, Poland's surrender requests will be rejected, resulting in the termination of surrender detention. 

Either way, this development is good news. Trusting that the same core values were shared in other legal systems was perhaps more idealistic than realistic after all. Now it is Poland, but there are other member states in the European Union where the rule of law is under pressure. For those countries, too, the ECJ's ruling could have consequences. As long as the rule of law is not in place, that country's surrender requests could be refused. Even if the country is in the European Union. 

Mr. D.M. Penn