Poland

The case concerned an execution European Arrest Warrant issued by Poland for the enforcement of custodial sentences. As regards one of the appellate judgments, the requested person had not appeared in person, and the District Court of Amsterdam held, in light of the Khuzdar judgment, that the requirements of article 12(b) OLW were not met. The Court found that there was no circumstance from which it could be inferred that the requested person had been informed of the time and place of the hearing, nor could it be held that he had deliberately avoided official notification. However, the Court decided to refrain from refusing surrender under article 12 OLW, noting that the requested person had appeared at first instance, had caused an appeal to be lodged, knew that appeal proceedings were pending, and had been at least careless in maintaining contact and ensuring his availability for official correspondence. Surrender to Poland was therefore allowed.

The proceedings concerned a request by Belarus for the extradition of a person sought for prosecution, after the appellate court had overturned a first-instance finding that surrender was legally inadmissible. The Supreme Court held that extradition could not be permitted where the requesting State lacked courts meeting the requirements of independence and impartiality and where pre-trial detention imposed by a non-judicial authority was not subject to timely judicial review. It further relied on the broader, documented deterioration of the rule of law and human-rights protection in Belarus. The appellate decision was quashed and the extradition proceedings were discontinued because the mandatory human-rights bar to extradition was established.

In matters of a European arrest warrant, the ground for refusing surrender cannot be based on the “clear risk of a breach of the rule of law” identified in the issuing State, since—so long as the European arrest warrant has not been suspended pursuant to Article 7(2) TEU in respect of that Member State—the possibility of refusing surrender must be recognised only in “exceptional circumstances”, in which the executing judicial authority, following a concrete assessment of the specific case, finds that there are serious and substantiated grounds for believing that the requested person would, after surrender, face a real risk of a violation of his or her fundamental rights. (Case concerning the risk to the rule of law identified by the European Parliament Resolution of 17 September 2020 regarding the lack of judicial independence in Poland).