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LIBE European Parliament
Follow its sittingsSophie Wilmès
Mrs. Frederika Curtol, Head of Operation at Eurojust, who is with us remotely, as well of Mr. Roman Zavrsnik, who is President of the Council of Bars and Law Society of Europe, which is also remotely present, as well as Professor Adam Bodnar, who is former Minister of Justice of Poland, former Commissioner of Human Rights of Poland and currently Head of the Department of Human Rights and Rule of Law at the Law Faculty of Warsaw SWPS University. So, I will first turn to Mrs. Tanja Schröter, Deputy Head of Unit, Criminal Procedural Law, DG JUST, European Commission. We are pleased to welcome you to this meeting. Please, I give you the floor.
Tanja Schröter
Thank you very much, Madam Chair, and thanks for the invitation today. In my unit, we're dealing with the European Arrest Warrant and in that context, of course, also with all the developments due to fundamental rights and rule of law issues that has also generated case law. So, the European Arrest Warrant remains one of the most widely used and well-known mutual recognition instruments in the EU. It stems from long time ago, 2004, so it's, it has been in operation for more than 20 years now. It's also the most judicially interpreted instrument on judicial cooperation that we have.
We have now over a hundred rulings on the EAW alone, which is far more than for any other instruments. Others are catching up, but we are not, not at that level yet. And this signals both the importance as well as the legal uncertainty that continues to surround the instrument on some aspects. As you might know, President von der Leyen in her political guidelines explicitly mentioned that she would strengthen the EAW. And in 2024, the Commission launched a study, which we refer to as the Lisbonization study, to see whether the EAW, but also other pre-Lisbon instruments are still fit for purpose.
So we covered seven instruments in total in there.
And the final report of the study was published in December last year and is also publicly available on the internet. And the study identifies several challenges with the EAW, some, well, most of them already known, but so there are ongoing deficiencies in national transposition. There are variation in how member states treat grounds for refusals, for instance, with some member states incorrectly transposing optional grounds into mandatory ones. And then there's a frequent lack of complete and high-quality information in EAW certificates, which often necessitates repeated requests for clarification and leads to delays in the procedure. But perhaps the most significant challenge relates to fundamental rights.
The framework decision, because it is adopted so early, let's say, does not have a ground for refusal on fundamental rights, contrary to, you know, more recent instruments. So it has created some questions if in some situations affecting fundamental rights, an executing authority was obliged to cooperate under the instrument and how could it not if there was no provision. And so the concerns that arose was in the context of detention conditions, for example, overcrowding in prison, but also in some cases about judicial independence and fair trials. And the Court of Justice has here been taken a lead role in that it has developed a whole doctrine, let's say, to address these questions. It has developed the so-called two-step test, which judicial authorities have now are now applying to address concerns that they have.
And this two-step test, maybe in a nutshell, consists in first looking if there is a systemic and overall problem with a certain issue affecting an objectively identifiable group of persons to which the requested persons belong. And so looking at prison conditions, that's a general problem with prison overcrowding, for example, rule of law issues in a country. And then, but that is not enough to satisfy to give a reason to the executing authority to stop the procedure and refuse the execution. You need on top of that a second step, which is that the individual situation, you have to look at the individual situation of the requested person and find that the issue also concerns them individually and that there is a risk thus to their fundamental rights. So that's the state of play at the moment.
The two-step test and this case law has allowed some say to reconcile, you know, the framework decision without this ground for refusal on fundamental rights with these concerns. So it has found a good balance here. On the other hand, this is also not easy, not an easy procedure for practitioners to apply. There's a greater administrative burden, greater unpredictability in certain procedures and also more extensive litigation, of course. And for the requested person, it translates into prolonged uncertainty about their fate.
Recently we have discussed the future of criminal justice in the context of a high-level forum and the EAW was also one of the topics discussed there. This event took place last year and was also attended by representatives of the European Parliament. And the question was asked to this group if a revision of the EAW should be envisaged. And nevertheless, in the high-level forum, the dominant view among the member states was clear. Since the instrument is largely seen as functioning well, the vast majority considered that a revision of the EAW is not needed in favor of non-legislative measures, such as updates to the EAW handbook, enhanced trainings, etc. to address potential practical issues.
The EAW is a mutual recognition instrument. As you know, mutual recognition only works well when there is mutual trust among member states. And this is why the Commission continues to work on trust-building activities. So we have maybe not so much trust-building, but we have launched infringement proceedings against 26 member states since 2021, which was important because because these issues clearly also affected the procedures, led to more refusals or unclear procedures. And we already see as an outcome today that there's an alignment of national legislation that led to a more uniform application of the EAW.
Some infringement proceedings are, by the way, still ongoing. Secondly, as regards prison conditions, which is one of the big topics that led to a lot of refusals as shown by our yearly statistics, we adopted a recommendation on detention in December of 2022. It contains non-binding guidance on procedural rights in pre-trial detention as well as on material detention conditions, such as on minimum standards for cell size, outdoors time, nutrition, healthcare conditions, and initiatives with a view to integration and social rehabilitation. It's based on Council of Europe recommendations, but the purpose of the EU text is to have an easily accessible and concise document which can be used by judges and prosecutors to assess whether they should surrender a person under European Arrest Warrant or, for example, transfer a prisoner under the framework decision 2008/909 on transfer of sentenced persons. It's also a very useful tool for prison administrations as well as for prison monitoring bodies.
And in order to monitor compliance with this recommendation, the Commission has developed a questionnaire in close cooperation with experts in the field, such as the prison administrations, the Council of Europe, the CPT, the Fundamental Rights Agency, judges, prosecutors, and defense lawyers. We have now received replies of all member states to this questionnaire and yeah, by last summer. And based on the replies, we have now prepared a detention report which follows up on the guidelines and which will be adopted in the coming months. So the procedure is now ongoing for its adoption. And as a second step to address these detention conditions, the Commission is working on the development of country fact sheets in close cooperation with the Council of Europe.
Speaker 8
situation in a particular Member State. Well, I'll stop here. Thank you very much.
Sophie Wilmès
Thank you very much. I will now give the floor to Mrs. Federica Curtol, who is the head of operation at Eurojust. Good afternoon. Welcome. You have the floor.
Federica Curtol
Good afternoon. I hope you can hear me well. My name is Federica Curtol. I'm the head of operations at Eurojust and it's a pleasure to be with you, even if only virtually, for this interesting monitoring group debate. Today, I'm gonna tell you a little bit about our work in cases at Eurojust and why the rule of law and the respect of fundamental rights is so important for us in our work.
Mrs. Schroter has already mentioned the keyword in all this, which is trust. Mutual trust for us, it's the condition for judicial cooperation. And at Eurojust, the agency for criminal justice cooperation, this is indeed at the base of all our efforts. When we convene meetings, it's not granted trust, but is checked on a case-by-case basis. Mutual recognition instruments, as it was already mentioned, is based on mutual trust.
And at Eurojust, these are our bread and butter. EAWs, but also European investigation orders, freezing orders, they are all based on the assumption that the basic and fundamental rights are respected in the different countries. Trust is also important from another perspective. And here I would like to mention cases of corruption that are referred at Eurojust. In the last five years, we had 422 new cases registered.
A lot of coordination meetings, 93 convened for this. And we supported also joint investigation teams. And why is this important? It's important because they attack the trust that the public has in public institutions. Just recently, we had a couple of cases that are also object of press release, so I can mention them quickly.
And they dealt with public procurement procedures. For example, in Italy, we had a case with an infiltration in regarding through a company regarding a case of solar panel and funds to build them in the south of Italy. Another case was with Romania and also there we had some coordination meetings and application of European investigation orders to identify, proof, and dismantle these operations. I'd like to mention also why the respect of the rule of law is important in our work from the point of view of evidence and evidence admissibility. I will mention here a case that you probably have heard about.
It's quite prominent in the news in the last couple of years. It's a case of EncroChat and Sky ECC. This is a case that has taken the news because basically the French investigator managed to uncover a network that was operating via a sort of WhatsApp for criminals and use the data in this WhatsApp for criminals, EncroChat, to identify possible leads for investigations. Of course, you can imagine all the issues related to the securing of this data, the preservation of this data, the exchange of this data with the countries which were affected. And I'm pleased to report that also thanks to the involvement of Eurojust, we made sure that all the procedural rights were respected so that we got to convictions that even withstood the appeals in court.
So they were very solid and in all the national courts where these cases have been opened, the convictions have been confirmed.
So this is another another reason why the respect of rule of law is so important for our cases on our day-to-day activities. I'd like also to mention at the end something related to our work in upholding these standards when we give advice to national authorities. For example, when we have conflict of jurisdictions, so we have to decide which is the best place to prosecute, or when we have, for example, competing EAWs, Eurojust has a mandate to give advice on which authorities should be best competent. We have some guidelines in relation to that. And these guidelines include some indicators, some criteria, of course they need to be combined with others, that have to do with the safeguards for the defendant, the ability of the defendant to participate to the proceedings, to understand it.
And these are also criteria that we use when we give when we give advice. We on the strategic level, because this is all our case-to-case approach, but on the strategic level Eurojust has been working quite a lot on EAW cases. And as it was mentioned, we have a very substantive case law here, also from the Court of Justice, which we analyze in respect to the challenges that we see in in our cases, the cases that are referred to us. And one important line where that we have analyzed in the past and we keep updated is the respect of prison conditions. Here the role of Eurojust in practical cases, because we just apply the law, is to ensure a good exchange of information between the authorities so that these standards are not only theoretical, but they are verified in practice on a case-by-case basis.
So this is also something that we facilitate at Eurojust. In our strategic work, we cooperate a lot with another agency, and this is the Fundamental Rights Agency. And we have some common publication that you can also see from from our website. I'd like to conclude my intervention by stressing how Eurojust in the field of internal security is an important agency in a way, sorry for being maybe self-complimentary, but because we are the agency that in cases, in operational cases, really ensure that these conditions, respect of human rights and rule of law is upheld, because we have an interest, otherwise it would not work, our work will not stand up in court. So thank you for your attention.
I hope I respect the time limits and I give back the floor.
Sophie Wilmès
Thank you, you did absolutely. I will now call Mr. Roman Završek. You have the floor as well.
Roman Završek
Good morning. Good afternoon, sorry. Good afternoon and thank you very much for the floor, dear Madam Chair Vilms, honorable members of the European Parliament, distinguished panelists, distinguished colleagues. It is an honor to address you today on behalf of the Council of Bars and Law Societies of Europe, the short name the CCBE. We are here to discuss a question that goes to the very heart of the European project: how rule of law developments directly shape internal security cooperation in the European Union.
Let me begin with a simple proposition. European internal security is not built first on instruments. It is not built first on agencies. It is not built first on data. It is built on trust.
Trust between Member States, trust in independent courts, trust in procedures, trust that fundamental rights are respected, not only in law, but in practice. This trust is what allows mutual recognition. It is what makes judicial cooperation possible. It is what gives practical meaning to the area of freedom, security and justice. But we must be clear.
Mutual trust is not automatic. It is not permanent legal comfort. It is not presumption that can be invoked indefinitely without verification. It must be earned, justified and continuously maintained. If trust is assumed instead of verified, the system begins to change, quietly, gradually.
Standards diverge, safeguards are applied unevenly, expectations no longer match reality, and cooperation begins to rely not on certainty but on assumptions, and assumptions is too weak a foundation for European security. This is where the legal profession has a unique role. Lawyers operate at the point where law meets reality. Every day, lawyers see whether defense rights are effective. They see whether judicial independence exists in practice.
They see whether procedural safeguards truly protect individuals, not only in legislation, but in real proceedings. Because harmonization on paper does not automatically mean harmonization in reality. And this gap between formal compliance and operational reality is one of the most serious challenges facing the Union today. The more mutual recognition depends on trust, the more dangerous it becomes when the trust is uneven in practice. At the same time, Europe faces real and interconnected threats: organized crimes, cyber threats, hybrid risks, migration pressures, digital governance challenges and geopolitical instability.
The need for stronger cooperation is clear. The need for effective tools is real. The CCBE supports effective cross-border cooperation and modern investigative capacity. But the real question is not whether Europe should act. It is how Europe acts and what it risks weakening in the process.
In times of pressure, there is a recurring temptation to treat safeguards as obstacles, to treat rights as flexible, to treat oversight as optional. But the rule of law is not designed for the easy times. It exists precisely for moments of pressure, when power is strongest, when urgency is real and when the risk of overreach is greatest. From the perspective of the legal profession, security, freedom and justice are not competing values. They are interdependent.
Security without freedom becomes control. Freedom without security becomes fragile. And both collapse when the rule of law is weakened.
Fundamental guarantees, access to a lawyer, judicial independence, the presumption of innocence, proportionality, confidentiality of lawyer-client communications, judicial oversight, and effective remedies are not formalities. They are what ensure that state power is exercised lawfully and that outcomes are legitimate and sustainable. When these safeguards are weakened, systems do not become stronger. They become more fragile, cases fail, evidence is challenged, convictions are overturned, and public trust erodes. This is particularly visible in the digital environment.
Across Europe, we see expanding powers, surveillance data, data access, biometric information, data retention regimes, and cross-border digital evidence. These tools may be necessary, but one principle must remain clear: the more powerful the tool, the stronger the safeguard must be. Let me give you one concrete example. When a lawyer cannot guarantee confidentiality in digital communications, clients may withhold information, not out of strategy, but out of fear. And that does not strengthen investigation, it weakens justice outcomes.
Confidentiality between lawyer and client is not a technical detail, it is not a privilege for lawyers, it is a protection for citizens. Because without the ability to speak freely with a lawyer, there is no effective defense, and without effective defense, there is no fair trial. Access to data must therefore be based on clear legal grounds, necessity and proportionality, independent judicial authorization, and effective remedies. These safeguards must not be decorative, they must be operational. It is not enough for fundamental rights to appear in recitals of general principles.
They must be embedded in the legal design, technical architecture, implementation, and review of security measures. Rights that exist only in principle do not build trust. Rights that can be invoked, reviewed, and enforced do. A second example concerns digital evidence. If evidence is collected without proper judicial oversight, courts may later exclude that evidence.
Cases fail, prosecutions collapse, trust erodes. So, safeguards do not weaken effectiveness, they enable it. This is why the real issue is not a trade-off between rights and security. It is a choice between lawful power and unchecked power. Unchecked power may act faster, but it destroys legitimacy, and without legitimacy, cooperation becomes less effective.
Let me also address a fundamental misunderstanding. Lawyers are not an obstacle to security. Independent lawyers are part of the security architecture of a democratic society. They ensure that coercive powers remain subject to law and independent scrutiny. They test evidence, they protect fairness, they help prevent abuse, and in doing so, they strengthen the legitimacy of the system itself.
This has practical consequences. Where safeguards are weak, cooperation slows, decisions are challenged, cases are delayed, and trust disappears. Where safeguards are strong, cooperation becomes faster, more reliable, and more resilient. And a third example concerns mutual recognition and the European Arrest Warrant. If one member state doubts the independence of another judiciary or doubts the effectiveness of the defense rights, it hesitates.
Execution slows, legal challenges increase, and trust again erodes. And this leads to a simple conclusion: rule of law developments directly affect internal security cooperation.
As the Union strengthens its security architecture, it must also strengthen its legal foundations. More cooperation must mean more oversight, more data must mean more accountability, and more efficiency must never replace legality. The legal profession must be part of this process, not marginally, but structurally. Bars and law societies see how laws function in reality. They provide practical expertise, early warnings about rights risks, and concrete insight into implementation challenges.
This involvement is not a corporatist request. It is the rule of law necessity. Allow me to also recall one important message. For European Lawyers Day 2026, the CCBE chose the theme Security and Freedom: Lawyers as Guardians Against Abuse of Power. This reflects a growing reality.
Security arguments are increasingly used to justify expanded powers, emergency measures, and limitations on individual rights. But security must serve people. It must not override them. Legal safeguards are not theoretical concepts. They are essential to legitimacy, to trust, and to societal stability.
Before concluding, I would like to express my sincere appreciation to the European Parliament, to the LIBE Committee, and to the Democracy, Rule of Law and Fundamental Rights Monitoring Group. Your role is unique. You are the democratic guardian of the rule of law in the European Union. Your scrutiny matters, your voice matters, your insistence on fundamental rights matters. Because without that, there is no credibility, and without credibility, there is no effective cooperation.
Let me conclude with one final thought. Europe's security does not depend only on stronger powers. It depends on stronger institutions, independent courts, independent lawyers, effective safeguards. Because in the end, it is not power that makes cooperation possible in Europe. It is trust that power is exercised within the law.
And a strong European security framework can only be built on strong rule of law foundations with independent lawyers at its core. Thank you very much for your attendance and I'm available for more the questions and answer session. Thank you.
Sophie Wilmès
Thank you. Before I will give the floor to Professor Bodnar, I have a request for question because we have one of the colleague who will need to leave before the end of the session. So I have, I think that it will be sad to miss the opportunity for Mr. Vavrikovič to ask the question he wants to ask. So I would suggest that we do that and then we will listen to Mr. Bodnar and we will have other question to everybody. But I'll give the floor to Michal Vavrikovič.
Michał Wawrykiewicz
Thank you very much also for understanding. I have the question, first question to Madame Schratter.
First regarding the institution of the European arrest warrant, which is as we know the institution based on the mutual trust and one of the most important when it comes to execution in a criminal law area. And in recent years national courts have increasingly had to examine whether systemic deficiencies in the another member state's judiciary, mainly decline of the rule of law system like in Poland, in Hungary, may affect the execution of the European arrest warrant. What, how the commission is going to address this problem and how do you think the commission in the longer perspective should solve this problem? If you could answer this question, please do. And the other question for you is regarding the Schengen area and the reintroduction of internal border controls in the Schengen area is legally possible, but only under very strict conditions.
But as we know in practice such controls are becoming more and more frequent and politically normalized. So how do you see this situation from the point of view of the mutual trust and Schengen area is also based on the mutual trust in that respect. And I have a question actually to Madame Curtol from Eurojust about the sanctions which are imposed by American administrations on the judges and clerks, officers of international criminal court in Hague. This is a very serious problem. As we know these sanctions are also followed with the European institutions like financial institutions, banks for example.
And we can imagine the situation where the sanctions are imposed on other institutions like European Court of Justice judges or members of the European Parliament. Have you, do you have any perspective on that problem? And third the question to Mr. Završek. Counselor, we have heard a lot of general remarks. We all know the rule of law and the independence of judiciary is very important and we need to protect it.
But in the practical terms, what is your idea from your perspective, from your institution, how do you want to use the tools that are at the disposal of lawyers, European lawyers, especially those tools on the European level? How do you want to convince lawyers in Europe to use directly European case law in the area of the standards of independence of judiciary? I mean this case law which was created especially in the last years based on the constitutional crisis in Poland, based on the constitutional crisis in Hungary. Because I truly believe that lawyers should be, you know, enhanced, should be convinced to use these tools in practical terms. Thank you very much.
Sophie Wilmès
So, Michel, do you still have the time to, for the answers or do... Okay, so I will first give the floor to the people you asked question to and then we will continue the session and we will do another round if you agree. Mrs. Schröter.
Tanja Schröter
Thank you very much for the question. So, your first question was how is the Commission addressing these rule of law challenges in the context of judicial cooperation, if I understood correctly. So, we have other actors as well, like and one fundamental one is the Court of Justice, which has equipped the judges, which are another important actor in the judicial cooperation as far as the European arrest warrant is concerned. They are the ones who decide about issuing and executing European arrest warrants and they are the ones who have to do this balance between the mutual the obligations under the instrument and the mutual trust and then the the rule of law challenges affecting it. And for that they have the case law of the Court of Justice.
What we as Commission are doing is okay, in the field of judicial cooperation of the European arrest warrants, we we are for example having a handbook where we also explain and and help practitioners to apply the case law of the court. That's an example. But of course there's all the work that my colleagues do on the rule of law. And that's I think also a very essential element. It's all the toolbox that the that the that the Commission has at its disposal at the moment to to try to address rule of law situations in in member states, including the rule of law reports that will be coming soon.
So this all instrumentarium I think is equally important of course or even more important than what we are doing specifically in the judicial cooperation area where we cannot address the root causes, we can only, you know, give instruments or help practitioners use the instruments that that are there to to do these balances in particular situations. So that's the first question. Your second question was on the Schengen area. You were saying that there are more border controls and how this is in line with mutual trust, if I understood correctly. So, Schengen, the Schengen area is is an area where we have a lot of of of cooperation, rule also based on on mutual trust of course, but we have we see a tendency of course of of member states in certain situations to reintroduce if there is any kind of threat, reintroduce these these border controls.
And there's there's a whole set of mechanism also in this area. This is discussed in the Council. There are there are reports also from from the Commission. It's my colleagues in DG Home who are who are responsible for that. And there are rules.
You cannot just impose border controls. I mean there are there are discussions then taking place. So, but but I just want to say that on the other side, with the growing threat from organized crime, for example, and migration, there's also a growing awareness that this is not issues that member states can solve on their own. I mean you may think that by closing your border and checking reintroducing border checks you can you can control what happens on your territory, but with the the new forms crime of crimes, the new methods crime is is using, the whole technological development, the digitalization, I think it's it's foolish to believe that just by by reintroducing border checks you can you can address these problems. And so there is also a growing awareness that you need more cooperation actually and more trust than than than less.
So we also see that in practice. It's not only the border checks. We have other things that are that are happening, the realization we need to do more in in in other areas together to address this.
Federica Curtol
Thank you for the floor. So about the sanctions. It is regrettable what is happening with the sanctions and the ICC. As you know, we are cooperating very much with the ICC, especially in the in the theme of Ukraine for the war of aggression on Ukraine, and they are a partner for us. And the sanctions are a serious challenge to the work of this partner, this important partner.
The sanctions imply a risk of affecting ongoing investigations and proceedings, with an impact on years of efforts to ensure accountability for crimes that are terrible crimes that are committing during wars. We believe at Eurojust in accountability, in ensuring accountability. We host, as you know, the International Centre for the Prosecution of the Crime of Aggression in the case of Ukraine. We also host since the beginning actually of the war in 2022 a joint investigation teams on on war crimes, and we cooperate with the ICC a lot in this in these matters. And we believe that like ICC believes that no one is above the law and the EU, and we are a EU agency, must stand strong to uphold this principle.
So we believe that the EU really needs to continue supporting our partners in the ICC and defend it against possible intrusion in their work. We keep on cooperating with the ICC and we keep on supporting them in every occasion we can. So that's what I can say about our standpoint on the sanctions against judges and prosecutors in the ICC. Thank you.
Roman Završek
Thank you for the floor and for the question. Yes, I I apologize first in not to leave out in my presentation what CCBE in fact is and what we are doing. So just briefly to mention, so we are organization of representing state national bar association of 46 member states, meaning more than 52 national bar association. We are doing through our committees, 25 committees where the real work is done, cooperating on the field of rule of law, human rights and everything concerning the legal profession. So we are in our committees we are cooperating with the Commission, the courts, different European agencies, so shaping the opinion, trying to be involved at the beginning of the different European legislation when it is developed and also contribute with our positions and also our experience into the rule of law report, justice scoreboard and many many other different different documents.
So as CCBE, so to directly address your questions, how we use the practical tools. So we use the practical as soon so in the procedure of developing the practical tools we are contributing to the development with our positions from the our national from member bars, which means through EU 27 and Council of Europe 46. So we we get the experience. We get the real praxis contribute to the development of the tools.
When the tools are developed, so we share experience of developed tools towards our members to start to use it. However, you need to take into consideration that the lawyers are the, they're only the parties to the proceedings. However, we usually defend the accused persons, the persons which are, if we speak in the criminal proceedings, so the persons who are under the, the arrest warrant. So we protect their rights that the proceeding is running fairly. So our work is of course focused on the, on the tools because without those tools we could not practice and there are no rights for the, the parties to the proceeding.
On the other hand, we usually depends on the training. So if the lawyers are trained well, of course they could easily and better use the tools. And the tool, the training usually depends on sufficient founding. Like the founding for the judiciary, also the CCBE has proposed in the new multiannual financial framework that there is secured sufficient founding for the lawyers for a big operational grant which could provide the lawyers with proper knowledge they, they could satisfactorily also use the tools and also contribute into the proceedings. So as said through many of other European tools, we are doing the same way.
We are using but would ask for more sufficient founding. But if I could just briefly address also the, the ICC sanctions. CCBE has also joined two amicus curiae cases in the United States against the American administration and the decrees of the president. So we are also trying to, to affect with the European experience, with the European democracy, those cases. We also supported the ICC by issuing a special statement in support of the ICC judges, however also the judges of the European Court of Human Rights after the letter of the nine states.
So I mean, we probably are the ones who use those tools in practice mostly. We are mostly also affected by those tools. However, we would also look and wish that we were heard more when there are proposals from the legal profession. I hope I have addressed what you asked, but if I'm not complete, so I could amend myself later.
Sophie Wilmès
Thank you very much. I will now, if you allow me, just resume the organization of the speakers' turns. I will love to give the floor to Professor Adam Bodnar.
Adam Bodnar
Good afternoon, ladies and gentlemen. Dear members of the European Parliament, dear LIBE committee, I'm really grateful for this invitation and the opportunity to share some of my thoughts regarding the mutual cooperation in criminal matters as well as some problems that may appear regarding the internal security issues. I think, and I would start with this, that right now this issue of cooperation, of good cooperation, is more important than ever because we have like the pending Russian threat over whole Europe. Threat that is the result of the hybrid war. In Poland, we observe numerous cases of sabotage, espionage, or other activities that are threatening our internal order, internal security, and that have obviously also external dimension.
But I would like to start by referring to the rule of law crisis because I can imagine that some of those discussions that we have are result of the ongoing rule of law crisis in some EU member states.
We remember well that this double test that has been referred to by previous speakers was in fact a consequence of a series of cases that have been addressed as a result of the preliminary references to the Court of Justice of the European Union. And those preliminary reference questions were related to the Polish situation. I remember, I'm right now in Dublin in Ireland, I remember well Judge Donnell from High Court of Dublin that made the first case like this in the case of Celmer. But it was not the last case, but ultimately the European Court of Justice has created an approach which is more or less like balancing the search for independence of the judiciary and on the other hand some let's say practical approach towards mutual cooperation in criminal matters. And I think that it was a wise decision by the court to make it this way.
And I'm happy to say that within last two years there were different changes made in Poland that strengthen Polish judiciary. So judges are not disciplined for the content of their judgments. Starting this month we have the new National Council of Judiciary. There was a complex exchange of people serving as presidents of courts. Moreover so-called independence test which is testing whether some individual actual judge could be biased is used quite frequently in Polish courts.
The only I would say important missing element is the situation of judges because some of the Polish judges could be still questioned on the basis of the EU Court of Justice jurisprudence as not being fully lawfully appointed judges and of course it might have certain consequences also in terms of European arrest warrant. But I do believe that sooner or later this problem will be resolved. Another problem which is which I hope will be resolved soon, at least it has been announced by the Prime Minister and it has been declared by the Prime Minister, it was part of the action plan, is the separation of the office of the Minister of Justice and the Attorney General. Please look that just exactly one year ago Polish Prime Minister has announced that there is this willingness to separate those offices. Also when I was still the Minister of Justice I put it into the action plan concerning Republic of Poland regarding lifting up of Article 7 procedure with respect to Poland.
But still you know there are like let's say positive changes in Poland happening and some of them have happened already, some of them are in the process. But I would like to just give you some two indications, interesting indications of certain problems that appear with the use of the European arrest warrant. And I think the most important one is the use by Hungarian administration of the right to asylum that has been granted to Polish former politicians that escaped Poland being afraid of criminal responsibility and they were given asylum by Viktor Orbán in order to protect them from the consequences of the European arrest warrant. And of course from the point of view one may say that there is a right to give political asylum to different people. And we know well that by virtue of the framework decision in such a situation European arrest warrant cannot be used.
But the problem is what to do when the state is abusing this right to asylum, when it is not really about I don't know some people fleeing from some distant locations from some countries in which there are serious violations of rights, let's name you know some of okay let's leave it without maybe names but we know I mean those countries in which there are grave human rights violations. And basically when a state is abusing this right in order to protect some let's say political friends because that was the case and I think Viktor Orbán was not even hiding the intention.
So basically we get here a little bit like the squaring the circle situation because the Hungarian court didn't have even opportunity to verify whether the European arrest warrant was, sorry, whether the political asylum was given in a bona fide way or whether it was just abused for the political purposes. So in my opinion, it is the situation that may be repeated in some other countries, and I think it is important to look at this intersection of, I would say, unequivocal power of states to give political asylum vis-à-vis the framework decision concerning European arrest warrant. Another case I wanted to mention is the pretty recent case, the last month case, concerning the High Court of Justice from Schleswig-Holstein in Germany. To our surprise in Poland, the court in Schleswig-Holstein decided to refuse give, to refuse surrender on the basis of the European arrest warrant because of the allegedly bad conditions in Polish prisons. I wouldn't say that Polish prisons are, you know, like perfect, but I think that they are getting better and better.
The situation is improved. Poland is subject of all different monitoring committees, including CPT, Polish National Prevention Mechanism. But apparently what has happened in this case, there was no like individual verification of the situation of in the arrest in the detention place to which this person is going to be surrendered. Second, apparently German court was relying on some old-time evidence, not really looking into the current situation in Polish in Polish prisons. So in my opinion, maybe it should be the case here that that maybe this verification in such situations of possible violation of Article 3 of the Convention should be made on reliable data, on verified information, and maybe courts should not be and courts should take really a greater attention of not giving such decisions that that are undermining the the penitentiary system in a given state.
I would like to add two more elements to our discussion. One was mentioned already by Mr. Roman Zawszek, and I would like to be more specific. Please look that it is extremely important that any person who is subject of any court proceedings is getting all the fair trial rights. Poland tried to implement, the government tried its best to implement EU directives concerning fair trial, especially the directive on legal aid, but unfortunately it has not been it has been vetoed by the Polish president. So basically we have a we have drafted really like a almost perfect legislation without any after a long period of consultations.
And because of the presidential decision, this legislation is not is not binding. So maybe, you know, here is the question for the Commission to be interested what happens that, you know, it takes such a long time for implementation of the of the directives and how to, let's say, combine a political effort of not only the government, because the government is willing to do everything, but also of the of the president here. The second point I wanted to mention is strictly related to the confidentiality attorney privilege.
Please look that Poland is one of those countries in which we had the so-called Pegasus spyware affair. We know now that there were lawyers who were subject of illegal surveillance. And what happens is that Poland continues investigation in this case and investigation is already pretty successful with a couple of persons being charged. Polish parliament is finishing its work with the investigative committee on Pegasus spyware and I can imagine that the chapter about lawyers will be important one. But I don't understand why the European Parliament has totally lost interest in the Pegasus affair.
I remember that in the previous term of the Parliament there was important committee dealing with Pegasus spyware and right now there is almost like a silence coming from Brussels and Strasbourg regarding this issue. And I think that at least European Parliament should be interested what some EU member states are doing regarding this and I can imagine that also Hungary will move forward with explanation of the use of the Pegasus in its country. And the second point regarding confidentiality of lawyers and also the internal security, please look that recently Council of Europe has prepared and adopted a comprehensive convention for the protection of a profession of a lawyer. Number of member states have already signed this convention, some of them move into the ratification but I don't know why the European Union is not declaring the support to this convention. If we have that kind of important document supporting lawyers and their independence, I think it should be also part of the European Union interest.
We know well that European Union ratified the UN Convention on Rights of Persons with Disabilities, the Istanbul Convention against violence against women and domestic violence and number of other international treaties. I think this specific convention should be subject of interest of the European Union. Thank you very much for your attention.
Sophie Wilmès
Thank you very much. That was very interesting and I feel that there are questions which have been rising also between the different speakers which is going to make all your second intervention absolutely more interesting. So there was indeed questions about the European arrest warrant and the abuse of the right of the political asylum. I think it was something that I was going to ask as well so very interested to hear about that. Mrs. Schroter, I heard you, I was listening to you very attentively and all of you actually and you spoke, a lot of you spoke about the detention conditions but you also mentioned when you spoke about the ground for refusal or the no ground for refusal on basis of fundamental rights and the two-step test, you also mentioned judicial independence.
And is it something that I would be happy for you to elaborate a little bit more if you don't mind? We also know that the Commission announced its intention to strengthen the European arrest warrant.
Euh, if you could tell us as your opinion and as far as you're allowed to, euh, to go that way, what you consider the most in need of improvement, euh, in this. Euh, for Mrs. Kertl, euh, European Union is also currently discussing a further strengthening of Eurojust mandate. From your perspective, how does the Member States perceive this next step, sorry, in operational integration, and do you see growing confidence in Eurojust role and added value? And what do you consider to be the key condition for ensuring that this strengthened mandate fully delivers its potential? Euh, Mr. Zevsek was very interesting, euh, you say was almost philosophical and, euh, and I had a lot of interest on, euh, what you don't get if there is no trust and, euh, cooperation.
The question is how do we reach the right balance between effectiveness and the protection of fundamental rights? And you made it quite clear, without fundamental rights there is no effectiveness. But I want to see if, to hear you if there is a risk that multiplying such exception would gradually undermine the very efficiency of judicial cooperation that mutual trust was designed to achieve. And indeed, Mr. Bodnar, you have actually tackled the points that I wanted to address you, euh, regarding, euh, the asylum granted by, euh, Hungary and how as far as you are concerned, this case tell us about the current state of mutual trust between Member States. And what, actually you asked the question to the Commission, but I would want to ask you the question, what you, what should as your view, euh, European Union do to ensure that cross-border judicial cooperation remains effective while maintaining confidence in the independence and impartiality, I'm very sorry for my poor English, impartiality of national justice justice system.
Mrs. Schroder, since you are the one who is going to have the most questions, I will, I will let you start. We have 20 minutes before the end of the session, so it gives you an idea how long you have ahead of you. Thank you so much.
Tanja Schröter
Thank you very much, euh, for the questions and I've just, so I'll start maybe with the, the issue of the, the Hungarian invocation of the right to, to asylum in I think two cases that was. So we have done a legal analysis when, when this happened and came to the conclusion that the right to asylum is nothing that you can invoke in an EAW procedure in the, in between Member States. It is something, euh, that is of course very relevant when you have an extradition request from a, from a third state and the person has been granted asylum and I think there is also case law on that. But it is not something that typically happens within the European Union. And, euh, therefore and I think there's a, there's a protocol or there is some, some text, I don't remember what it was, that, that actually also, also says that.
But, euh, so that's on the one hand side.
On the other side the EAW procedures in individual cases are a fully judicial procedure where you know the Commission has no role. This is up to the judicial authorities in the issuing and the executing state. There is judicial authorities involved and the so the standard reply we also give when we are asked what will the Commission do is you know we don't intervene. This is not for us to intervene in individual judicial procedures unless you reach the step of of of systematic deficiency etc. where you know you can consider infringement proceedings on our side. This has not happened yet on on in the context of these cases.
I think one of the persons is also no longer in Poland for the time being but has been yeah welcomed elsewhere. And so yeah I'm not sure if there will be a follow-up on these cases but this is clearly not something that should happen among among member states. That is clear. Now of course the situation has also changed in Hungary so well. Then you asked about the more specifically the judicial independence in the context of this two-step test.
So the two-step test was first developed in the context of detention conditions with the Aranyosi Căldăraru case which was the first groundbreaking case which where this two-step procedure was established. But in in later cases it was applied also to situations of lack of judicial independence and in particular in in Poland. And the the court has has taken as a starting point the the fundamental right to a fair trial which is a fundamental right affected by a lack of judicial independence. And that then translate into a two-step test where you as a as a first step you need to have indication that there is a real risk of breach of the fundamental right to a fair trial on account of systemic or generalized deficiencies as far as concerns the independence of the issuing member state's judiciary. And then you have to look at whether in the second step there are with regard to the individual's personal situations there is a but also the nature of the offense so if it's a political offense you know might be a different assessment than if it's a traffic offense.
So I mean there there that's also to be taken into account and then so you need to look at the whole context if there's a real risk for the person concerned in the light of the information provided by the issuing member state. So generally there is a request for information from the executing authority to the issuing authority to provide more information to assess all that. I hope that replies to your question. And then yeah the strengthening of the EAW I mentioned that I think in the beginning of my of my intervention. So it is actually a difficult question for us because we have on the one hand we have the the task to strengthen the EAW and the most impactful way to do that would be to do a revision.
And in particular where we see you know scope for for improvement is to somehow incorporate some of the elements that have been developed by the case law into the the framework decision because it is now becoming a real challenge for somebody to be on top of all this case law. You have more than 100 judgments, very big spectrum of different cases. And if you are a judge that applies the EAW on a daily basis, okay, you might be a specialist, you might know, but if you are as as many in many situations you are a national judge and then you have once every five years you have an EAW that you need to issue or to to execute. And if there's no specialization in in that country, it becomes very difficult to be on top of of all this case law. So incorporating then some elements in the framework decision would be would be facilitating that.
But we have a clear no from member states telling us no, this is a no-go, we will not support any any legislative procedure. So we are looking at other ways like you know these updating the handbook, is there is there more guidance we can propose in in any views and and yeah, if if there's any great idea on something that is you know where we haven't which we haven't considered yet, we are happy to hear. Digitalization is another thing that we are doing that will also facilitate the procedures, but that will require some time and will not will not address all these issues of the complexity. Yeah. Thank you.
Speaker 17
Thank you very much, Mrs. Gerto. Thank you again for the floor. Can you hear me? Yes, we can. Thank you.
I can hear you, yes.
Federica Curtol
Okay. So it's about the the tabled proposal. The proposal was tabled indeed last week by the Commission and I can say I've been working for 20 years now at Eurojust in different roles and this proposal gave me the goosebumps, honestly, because it recognized the potential of our agency in ensuring really the the the security chain. It was not a case that the Eurojust and the Europol regulations were tabled together to strengthen the efforts of the EU to ensure a proper fight against organized crime and other serious forms of crimes. At the moment the regulation as you can imagine this proposal is being discussed internally at Eurojust by our by our governing body, current governing body, that is the college, which is composed by 27 representatives from the respective EU member states.
So you were asking about their perception and that I cannot anticipate, but we are largely discussing and we see with with with the positive eye many of the improvements that that we see in this proposal. In particular I'd like to mention the improvements in our operational tools. They are strengthened, there are more powers to act in a proactive way for for Eurojust, more powers for our national members to take care of judicial cooperation instruments, to sign joint investigation teams. So there are there is a lot of potential in in this.
There is also a role recognized by Eurojust in EMPACT, which is also super important because EMPACT is a multidisciplinary platform for the fight against organized crime, but so far has been largely law enforcement led. And we see a space for the judicial authorities really to ensure what I was mentioning before, that there is also a judicial review, to ensure also that evidence then in the proceedings is admissible, that safeguards are respected, and these orders can be issued in a fast way. So regarding the conditions for this regulation to realize this full potential, and again, there is a lot of potential in this regulation, well, maybe I will be a little bit obvious, but one is about resources. Eurojust is a small agency in comparison to other players in the security chain in Europe, mentioning Europol, but also Frontex. Here we know also from the political guidelines that Europol is going to be doubled in the next period, in the next seven years period.
Eurojust is also being reinforced with this regulation, given resources to take all the new tasks. One of the previous speakers was mentioning the hybrid threats. This is now going to be part also of our Annex 1 to the regulation, so of the crimes in which Eurojust can activate its mandate. And this is also important, but of course these are all complex issues and they require resources. Proactivity requires resources.
So we hope really that maybe not the doubling of our agency like Europol, but at least the reinforcement that is foreseen is really ensured for the next period so that we can remain a trustworthy and reliable partner in these efforts. Another condition for realizing the full potential of this regulation, I think, is something that is now sketched in both the Europol and the Eurojust regulation, and it's about the exchange of information. We need to be able to exchange information between law enforcement and judiciary also at European level, of course with the agreement of the national authorities involved. And I think both regulations are now setting up mirroring provisions to ensure that there are no hiccups and that this process is done in a flawless manner so that we can really follow up all the good work that is done by Europol and by the national authorities at the law enforcement level and ensure that this is brought to the full potential when it comes to work in courts. So this would be my preliminary reply.
Again, it's really preliminary. The proposal has just been tabled, so we need some time also to study all its implications, but generally this has received a positive reaction in Eurojust.
If there are further questions, and I realize my camera is not on for some reason, but if there are further questions, I'm happy to answer.
Adam Bodnar
Thank you very much for this important question. So let me follow up on this European arrest warrant vis-à-vis asylum request. You're right that we have protocol number 24, and the question is whether this protocol number 24 is giving too much power by way of exception to some member states. Because please look, if the state is just submitting declaration to the Council, so basically it could be just like a formal letter, then basically you can use this procedure. I'm not sure whether the Council has enough of instruments in order to react in such a situation and in order to prevent that kind of abuse.
So I would make a reflection on this. Second point, please look that Hungary was still kind of afraid that irrespectively of those declarations, it may happen that one of those Polish politicians will appear before the court. But interestingly, Hungary has changed the legislation. So they have amended the criminal code providing for that if anybody is getting asylum, then basically you cannot surrender this person. So why I mention this?
Because maybe this case, we know well that those two Polish gentlemen, former politicians, they have escaped Poland. One of them is in the United States, the other one we don't know yet, but most probably he's in Serbia. And maybe you know from the point, so as of now, it may seem that this situation is becoming maybe not that much relevant. But maybe it is the something like for the case study to be obtained. And I remember there was a very good piece by Professor Petra Bard published on Verfassungsblog in which she described all those problems with the European arrest warrant and the EU law in this regard.
And maybe final point, please look that the defense lawyers for those two guys are right now presenting very interesting arguments. They say like this, oh, because those guys are not any longer in the territory of the European Union, because they are outside of the European Union, it means that Polish courts should not make any decision concerning European arrest warrant regarding them. Because the decision should be applicable only to the situation when somebody is declared to be in the European Union. So maybe it is also one room for clarification that the European arrest warrant is not only for the situation when somebody is in the EU, but also when somebody may come back to the EU. Then in such a situation it should be obviously also applicable.
Thank you very much.
Speaker 16
Thank you very much, Mr. Zerfsek. We are going to finish with you. You have the floor.
Roman Završek
The question correctly you asked me how we should reach the fair balance between the human rights and the on the other side legislative provisions. Have I understood you correctly?
Roman Završek
To be efficient. Yes, of course, we never claimed as a lawyers that we would need more exceptions because we said the provisions are rather okay if they are performed in the way that they are not interfere too much into the human rights. Which means that the evidence, either the digital or the factual one which is taken on the spot, should be taken in the way that the justice oversight is provided.
On the other side, we would like to have the same insight into the, or the clients, we are just the ones who are representing the clients, we would like to have the same insight into the evidence which is at disposal of the agencies, different agency or public prosecution on the European level. And however, we, we, we need, I mean, we of course never argued that, that we are against that the procedure is efficient. But the efficiency, efficiency itself could not go on the, on the side of the human rights within the meaning that we overlook something what is important for the party into the proceedings. So sometimes of course this very much depends on the, let's say, on the, on the level of the courts, national courts, and the level of the training either the judges what we heard before, as well we need to recognize also the level of the lawyers. So if there will be enough, sufficient founding for the good training of judges as well as for the lawyers, of course also this, this problem of, of efficiency would might be not so much appearing.
But nowadays if one party is provided well either with the, the tools and the evidence and the, have the insight into it and the other party is not, so this is the real effect into the human rights. So we need to take care that the both parties have equal rights because only equal rights provides the fair procedure and of course the independence of all the actors within the procedure also guarantees the rights to the client.
Sophie Wilmès
Thank you very much all of you for your participation and your insight. Just want to, we need to cut the streaming if I understood well to be able to give you some...