Extradition between Germany and Poland

In the case of a European Arrest Warrant, member states can no longer refuse to extradite their citizens unless they take over the execution of the custodial sentence against the wanted person themselves.

Under the European Convention on Extradition (EuAlÜbk), however, both Poland and Germany have used the right granted under Article 6 of the EuAlÜbk to refuse to extradite their citizens. To this end, both states made a corresponding declaration supplementing Art. 6 when they acceded to the Convention. However, since the provisions of the European Arrest Warrant now apply between Germany and Poland, both states are now obliged to extradite their citizens to each other.

Extradition between Germany and Poland is governed by the relevant rules of Union law and the European Convention on Extradition (EuAlÜbk) of the Council of Europe. Poland joined the Council of Europe after the fall of the Soviet Union on 26 November 1991 and ratified the EuAlÜbk in 1993. Until Poland acceded to the EU on 1 May 2004, its rules on extradition applied. With its accession to the EU, the EU legal regulations and, thus, the European Arrest Warrant concerning international mutual legal assistance in criminal matters and extradition finally entered into force.

Since its introduction in 2004, the European Arrest Warrant has considerably simplified interstate cooperation between EU member states. It simplifies the surrender of wanted persons for criminal prosecution or the carrying out of a (custodial) sentence and, since its introduction, has replaced the lengthy extradition procedures carried out until then. The procedure is based on the mutual recognition of court decisions and applies to all member states.

A country may only refuse a European Arrest Warrant (EAW) in a limited selection of cases. These include, among others, a previous conviction for the same offence (under the principle of “ne bis in idem”), the person concerned being a minor, the crime being time-barred, or proceedings still pending in the executing state. However, in addition to these examples, numerous circumstances could be grounds for refusal of surrender based on an EAW. Therefore, a comprehensive and precise examination of the individual case is always necessary to ultimately successfully obtain a rejection of the EAW.

During the procedure surrounding the issuance and detention based on an EAW, the procedural rights of the person concerned must be respected. These range from the right to information and notification in criminal proceedings (Directive 2012/13/EU) to the right to interpretation and translation (Directive 2010/64/EU) and the right to access legal counsel in criminal proceedings (Directive 2013/48/EU). In addition, the rights from Art. 47 – 49 of the European Charter of Fundamental Rights apply in particular, which lay down principles such as the right to a fair trial and the presumption of innocence.

However, national authorities are only bound by the European Charter of Fundamental Rights if they act in the application of Union law. National law must be invoked if a person’s fundamental rights are violated during proceedings. Appeals must always be made against the respective national authority, applying national and procedural laws.

A few years ago, the question arose as to whether European Arrest Warrants coming from Poland must continue to be executed despite doubts about the rule of law of the legal system there. In 2018, the ECJ ruled for the first time on a corresponding case submitted by an Irish court. In a judgment of 22.02.2022 (Cases C-562/21 PPU and C-563/21 PPU), the ECJ confirmed that the legality and, thus, the validity of the EAW continues to depend on the individual case.

A European Arrest Warrant from Poland is not automatically invalid, even if the judicial system there has systematic and general deficiencies. For the examination of the individual case, the ECJ developed a two-stage examination:

First, it had to be examined whether there was a danger to the fundamental right to a fair trial due to the deficiencies in the judicial system.

Then, it had to be examined whether such deficiencies in the specific case could impact the proceedings of the person concerned. In this context, it would be up to the person concerned to present concrete evidence in their defence as to why a particular deficiency in the judicial system affects their criminal case and hinders access to a fair trial.

Read more about this on our page on the validity of a European arrest warrant from Poland.