Prosecutor General repeats ENA request for Marcin Romanowski despite identical evidence, raising legal questions about procedural integrity.
Legal Doubts Over Repeat Request
The prosecutor’s repeated request for an ENA (European Arrest Warrant) against Marcin Romanowski relies on the same factual and evidential basis as the previous application, admitted by the National Prosecution Office spokesperson. This raises significant legal and procedural doubts about whether Polish law permits a “second attempt” at an ENA without new grounds.
Many legal scholars argue no legal procedure exists allowing a prosecutor to challenge a final court decision revoking an ENA if the factual and evidential state remains unchanged. The prosecution’s actions are seen as an attempt to interpret a non-existent appeal or parallel procedure, contradicting the rule of law.
Finality of Court Decisions
A key issue is the finality and non-appealability of a district court’s decision to revoke an ENA. Under Polish Code of Criminal Procedure (K.p.k.), decisions on ENAs are issued by a district court in a single-instance proceeding. The legislation does not provide a standard appeal mechanism against a decision revoking an ENA, as confirmed by a spokesperson for the Warsaw District Court.
Similarly, when an ENA is issued, the suspect lacks a standard appeal. This asymmetry stems from the law’s design, intended to make the ENA an efficient and swift instrument, overriding the usual avenues for challenging decisions impacting personal liberty and movement.
Comparison to Other Legal Mechanisms
Legal doctrine and case law highlight that repeating resolved issues without new circumstances is impermissible. For instance, if a court denies a pre-trial detention request, the prosecutor cannot indefinitely reapply based on identical facts, expecting a different judge. This would constitute an abuse of a final judgment.
K.p.k. Article 41a explicitly states that a judge recusal request based on identical factual grounds as a previously considered request is left without consideration. This principle prevents abuse through repeated identical requests and upholds the stability of judicial decisions (res iudicata) incidental to the main proceedings.
International Legal Standards
The EU Court of Justice (CJEU) has emphasized that the ENA mechanism relies on mutual trust between member states but cannot override fundamental human rights. In cases like Aranyosi and Căldăraru (C-404/15, C-659/15), the CJEU allowed member states to suspend ENA execution if there is a serious risk of fundamental rights violations.
The European Convention on Human Rights (ECHR), particularly Article 5, guarantees the right to liberty and requires deprivation of liberty to be lawful and non-arbitrary. Issuing a “repeat” ENA without legal basis could violate Article 5, as the detention would lack conformity with domestic law and appear arbitrary. Article 6 ECHR also guarantees the right to a fair trial before a tribunal established by law.
Procedural Irregularities
In the Romanowski case, the assignment of the new judge for the repeat ENA application bypassed the standard random allocation system, choosing a judge specializing in international law manually. The defense argued this violates K.p.k. (constituting improper court composition under Article 439 §1 pkt 2) and Article 6 ECHR, referencing a 2018 ECHR ruling condemning arbitrary judicial appointments.
This procedural flaw, combined with the prosecution’s strategy, suggests an attempt to secure a favorable ruling by circumventing normal procedural safeguards and targeting a “convenient” judge. Practices manipulating judicial panels are characteristic of authoritarian regimes and undermine the rule of law.
