Two weeks ago, the Court of Justice of the European Union (CJEU) ruled a sentence which is of great interest. For some media, the resolution of the Luxembourg court favors Carles Puigdemont, while for others, on the contrary, it hinders their defense strategy. Subject to expert opinion, it is worth taking a look at that resolution.
Let us first see the object of the statement, which responds to a preliminary ruling from a Dutch court. In it, their doubts regarding some european arrest warrants received from two Polish courts against citizens of Poland who are in the Netherlands. It is a matter of knowing if their surrender proceeds due to suspicions that they cannot have an impartial trial. EU regulations impose collaboration between the jurisdictional bodies of the member countries, and from this duty the mechanism of the European arrest warrant is born. But, equally, the EU is a space governed by its Charter of Fundamental Rights, which includes in article 47 the right to an impartial judge. And what raises questions is precisely the impartiality of the Polish courts.
On July 15, 2021, at the request of the European Commission, Poland was sentenced by the CJEU in the European Commission case against Poland. The ruling stated that the chamber of the Polish Supreme Court in charge of resolving appeals for disciplinary sanctions against judges lacked impartiality, and its independence was not guaranteed. The reason was that the magistrates of the Supreme Court were appointed by a “National Council of the Judicial Power” in which 23 of its 25 members are appointed by the political authorities. In paragraph 103 of that judgment, it was stated that the fact that a body of this type is made up mainly “of members elected by the legislative power cannot, by itself, lead to doubts about the independence of the judges appointed as a result of said process & rdquor ;. But he added, in the following paragraph, that in the Polish case there could be a risk of “undermining the independence of this body & rdquor ;.
In the judgment of two weeks ago, the CJEU responds to the preliminary ruling taking into account the conviction of Poland last July. In its conclusions, using language as convoluted as that sometimes used by our courts, it establishes the criteria by which compliance with a European arrest warrant may be refused. The first is designed for when the surrender of a person already sentenced is considered: surrender can be denied if it is considered that the sentence has been imposed by a court without guarantees of impartiality. The second is the one that the media have probably taken into account, which interpret the sentence as an early support for the theses of the defense of Mr. Puigdemont, since it refers to the investigation and not to a trial that has already taken place. Specifically, the rejection of the European warrant may be based on the conviction that the person sought is risk of not having a fair trial taking into account “the information provided by the affected person, the nature of the crime for which they are prosecuted, the factual context that frames the European arrest warrant or any other relevant circumstance to estimate the independence of the judges called to hear the process that affects that person & rdquor ;.
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If the Belgian justice considers that the CGPJ lowers the impartiality of the jurisdictional bodies, the image of our democracy will have suffered
In view of all this, it seems to me that this sentence will influence the response given from Belgium to magistrate Llarena, which instructs the case against Carles Puigdemont. It will be necessary to look at what consideration they give to the crimes for which they are persecuted, especially sedition. It will also be important to see if our General Council of the Judiciary it is considered a body that, due to its composition and role in the appointment of judges and magistrates, lowers the impartiality of the jurisdictional bodies. If that happens, we will regret it, and perhaps there are those who believe that our institutions are victims of historical prejudice. But, in any case, and rightly or wrongly, the image of our democracy will have suffered. Hopefully it doesn’t happen, but, just in case, let’s reflect on its weak points from now on.