Poland facing mutual trust principle of the European Area of Freedom, Security and Justice

Abstract

This paper, based on the latest judicial decisions of the Court of Justice of the EU, the European Court of Human Rights and relevant literature comments, deals with mutual trust principle related to HRs protection, especially right to fair trial in the European Union member states. The principle of mutual trust renowned for being a milestone of the EU Area of Freedom Security and Justice comes from the mutual confidence in the rule of law as European integration foundation. Meanwhile, the CJEU decided recently five cases considering Polish judiciary independence. The analysis of these judicial decisions gives a clear picture of a member state that neither applies effective judicial protection principle of Article 19 of the Treaty on the functioning of the EU nor guarantees a right to fair trial under art. 47 of the Charter of Fundamental Rights of the EU. The essential question of this analysis considers the limits of mutual trust in reference to Poland. In case C-216/18, PPU/LM Court of Justice of the EU for the first time dealt with Polish judicial system deficiencies that undermined trust of Irish High Court executing Polish European Arrest Warrant (EAW). Inspired by the Strasbourg jurisprudence and the positions of national courts the CJEU accepted decentralized judicial review of respect for human rights in Member States. Developing previous jurisprudence based on cases: C-411/10 and C-493/10 N.S and C-404/15, Aranyosi/ Căldăraru the Court of Justice in PPU/LM adopted three-stage test and taught the national courts executing EAW about the steps that have to be taken in case of mistrust to fairness of trial in the issuing state. This paper comments a few of the masterful CJEU decisions balancing general risk of mutual trust suspension towards Poland with another great risk of right to fair trial diversification in member states. One could say - «Between – Scylla and Charybdis». However, recent judgments of the CJEU considering Polish courts independence prove that mutual trust cannot be absolute, especially in respect to fair trial. The final conclusion is that national courts that are in charge of diligent examination of procedural standards beyond their own states, on the one hand, mistrust Polish procedural standards, on the other, do not handle efficient instruments, except for dialogue, to supervise their peers from another member state. 

Summary:

1. Trust based integration through the rule of Law. 2. Principle of judicial independence as a value of the rule of Law. 3. Mutual trust in the Area of Freedom, Security and Justice. 3.1 National courts in charge of judicial review beyond their states. 3.2 Should mutual trust be suspended towards Poland? 4. Concluding Remarks