Mutual trust

European Arrest Warrant, Asylum

Nejvyšší správní soud

Supreme Administrative Court

8 Azs 114/2021-46

08/12/2021

ECLI:CZ:NSS:2021:8.Azs.114.2021.46

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Decision of the ECtHR from 8. 11. 2021, Dolińska-ficek and Ozimek v Poland, applications no. 49868/19 a 57511/19
Decision of the ECtHR from 22. 7. 2021, Reczkowicz v Poland, application no. 43447/19
Decision of the ECtHR from 29. 6. 2021, Broda and Bojara v Poland, applications no. 26691/18 a 27367/18
Decision of the ECtHR from 7. 5. 2021, Xero Flor w Polsce sp. z o.o. v Poland, application no. 4907/18

Asylum – European Arrest Warrant – Situation in Polish judiciary –

What are the conditions under which a person who is to be extradited to Poland on the basis of a European Arrest Warrant may have access to international protection?

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§ 2(4), § 12, § 12(b), § 14a of the Act no. 325/1999 Coll., Asylum Act (zákon o azylu)

The applicant was arrested in the Czech Republic in 2019 on the basis of a Polish European Arrest Warrant for the purpose of being extradited to face criminal proceedings relating to drugs and arms trafficking. Following his apprehension, he applied for asylum, arguing in particular that he was concerned about the political motivation of his criminal proceedings and the threat that his rights would not be respected. According to the applicant, the criminal proceedings are linked to a dispute between his father and a former Deputy Minister of Finance, against whom the applicant's father filed a criminal complaint in 2011 on suspicion of committing very serious crimes, following which the Deputy Minister was prosecuted and removed from office. In this criminal case, the applicant was supposed to cooperate with the Polish counter-intelligence service in order to obtain evidence. Another reason for the request for international protection is the ongoing dispute between the applicant's mother and the Polish Minister of Justice (and also the Prosecutor General).
The applicant's application was ultimately rejected as his story was found not to be credible. The administrative authority concluded that the grounds put forward by the applicant were not relevant for the purposes of asylum, as the proceedings did not show that he had been persecuted in his country of origin for exercising political rights and freedoms or that he had a well-founded fear of being persecuted for holding certain political opinions. This was subsequently upheld by the Regional Court and the applicant filed a cassation complaint with the Supreme Administrative Court.

With regard to the applicant's arguments concerning the threat of violation of his rights, the Supreme Administrative Court first stated in general terms that criminal prosecution may constitute a relevant ground for asylum and must not necessarily be linked only to the exercise of political rights. Therefore, where there is evidence of criminal prosecution of an applicant in the country of origin, the circumstances of the case and the situation in the country of origin must always be carefully assessed.
With regard to Poland, the Court notes that, following the controversial judicial reform, the level of protection of rights has moved away from Western standards. This is illustrated by a number of judgments of the Court of Justice and the European Court of Human Rights assessing various changes in the Polish judiciary.
On the other hand, although the reservations expressed by these two courts in these judgments about the Polish judicial system are serious, it cannot be assumed that the prosecution of a person for any offence in Poland constitutes, in a significant proportion of cases, a threat to these persons in the asylum sense. The situation in Poland does not in itself mean that every applicant for international protection from that country automatically qualifies for international protection, be it asylum or subsidiary protection. Such applications must be assessed on an individual basis, which is also in line with the case law of the Court of Justice.
At the same time, it is important not to lose sight of the fact that, although the international protection procedure and the extradition procedure are related, the aim and purpose of the two are different. Thus, if some EU Member States have decided, on the basis of the case law of the Court of Justice, to suspend the surrender of a Polish national in the context of the European Arrest Warrant procedure, this does not mean that such persons must be granted asylum protection without further consideration. The threat of criminal prosecution or a criminal prosecution that has already been initiated may be relevant for asylum purposes in such cases, provided that it is clear from the particular facts of the case that the circumstances of the applicant's prosecution deviate significantly from the usual standards in the country of origin, i.e. that it is not an ordinary criminal case, but a criminal prosecution that has been fabricated and is motivated and influenced by political or vested interests.
Applying these premises to the applicant's case, the Supreme Administrative Court agreed with the assessment that the part of the applicant's story concerning his father was not credible. However, it criticised the Regional Court and the administrative authority for failing to deal at all with the second conflict between his mother and the Minister of Justice. The Court emphasised that if the authorities considered that this was also not credible, they should also justify and explain their conclusions on this part of the asylum application, particularly as the Minister of Justice, who is also the Prosecutor General, has extensive powers within the Polish judicial system. For this reason, the Court annulled both decisions and referred the case back to the administrative authority for a new procedure.

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consistent interpretation

The Supreme Administrative Court does not cite Regional courts' case law or other foreign courts case law.

The Supreme Administrative Court cites its own case law.
The Supreme Administrative Court cites many decisions of the Court of Justice and the European Court for Human Rights.

The Supreme Administrative Court wanted to show the decay of the Polish judicial system, although it subsequently found that this alone did not justify asylum protection.

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No

Yes

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Ondřej Kadlec, Šimon Chvojka, Masaryk University