High Court: Further information necessary for determination on Polish extradition case



Ms Justice Aileen Donnelly
Ms Justice Aileen Donnelly

Following a ruling from the Court of Justice of the European Union that the High Court was justified in refraining to give effect to a European arrest warrant issued in Poland due to fears about fair trial rights, Ms Justice Aileen Donnelly has held that it is necessary to request further information from Poland to enable her to assess the risk presented to the man sought of a breach of his fundamental right to a fair trial.

Ms Justice Donnelly was particularly concerned with comments made by Poland’s Deputy Justice Minister in which the man was described as a “dangerous criminal”, and therefore had considerable implications for the man’s presumption of innocence

A real risk of fundamental rights being breached

In March 2018, finding that the recent legislative changes in Poland had an impact on fair trial rights and were in breach of Article 2 of the Treaty on the Functioning of the European Union, Ms Justice Donnelly referred two questions for determination to the Court of Justice of the European Union.

The referral was based on the finding that there has been a systemic breach to the rule of law in Poland, and in July 2018 the CJEU ruled that an executing judicial authority may refrain to give effect to a European Arrest Warrant if “…there are substantial grounds for believing that the person in respect of whom that European arrest warrant has been issued will, following his surrender to the issuing judicial authority, run a real risk of breach of his fundamental right to an independent tribunal and, therefore, of the essence of his fundamental right to a fair trial”.

Following delivery of the CJEU’s judgment, a further hearing was held before Ms Justice Donnelly in the High Court. In the course of this hearing, the subject of the present judgment, Ms Justice Donnelly said that she would set a trial for the substantive issues in the new term, and that this judgment would deal only with the question of whether the Court should seek supplementary information for assessing whether there is a real risk to Mr Artur Celmer of a breach of his fundamental right to an independent tribunal, having regard to his personal situation as well as the nature of the offence for which he is being prosecuted.

The parties agreed that this assessment should be made on material that is objective, reliable, and properly updated.

Ms Justice Donnelly was satisfied that the documents submitted on behalf of Mr Celmer supported the assertion that there had been a lack of significant change to the position in Poland since the Reasoned Proposal of the 20th December 2017. Having considered the tests set out in paragraphs 62-67 of the CJEU judgment, Ms Justice Donnelly was satisfied that there was “a real risk, connected with a lack of independence of the courts of Poland on account of systemic or generalised deficiencies there, of the fundamental right to a fair trial being breached”.

Polish minister’s remarks not merely inappropriate

Ms Justice Donnelly also considered newspaper articles submitted on behalf of Mr Celmer, which included remarks made by Poland’s Deputy Justice Minister. In various publications, the Deputy Justice Minister is recorded to have described Mr Celmer as a dangerous criminal from a “drug mafia”. It was submitted that these declarations were inconsistent with respect for Mr Celmer’s presumption of innocence.

The Minister for Justice and Equality submitted that the comments were inappropriate, but said it was difficult to see how it might affect Mr Celmer’s right to a fair trial.

The Minister also submitted that it was only after the Court made a “specific and precise assessment” that there were substantial grounds for believing Mr Celmer will be at real risk of a breach of his fundamental rights, that the Court could seek an assurance that he is not at such a risk; however Ms Justice Donnelly said that it was not necessary to come to a final determination on whether the Court was subject to this limitation because of the specific concerns raised by Mr Celmer and the information provided in support of his arguments. In particular, Ms Justice Donnelly said that the remarks by the Polish Minister appeared to have considerable implications for Mr Celmer’s presumption of innocence.

Ms Justice Donnelly said that the reported statements were not merely inappropriate from the perspective of the Irish legal system, and that the “requirement that public officials and not merely prosecutors and judges refrain from describing an accused person as guilty is a well-established requirement under Article 6(2) of the European Convention on Human Rights which states that “everyone charged with a criminal offence shall be presumed innocent until proven guilty according to law.”

The remarks were also “particularly concerning in view of the role of the Minister of Justice as Public Prosecutor as well as his apparent role in the disciplining of the Presidents of the courts, including the Ordinary Courts”.

Considering these concerns, Ms Justice Donnelly said it was necessary to seek further information from the issuing judicial authority to enable her to assess the risk to Mr Celmer of a breach of his fundamental right to a fair trial. Emphasising that the final decision as to what questions should be asked of the issuing judicial authority, Ms Justice Donnelly invited counsel for both parties to submit draft questions.

  • by Seosamh Gráinséir for Irish Legal News

© Irish Legal News Ltd 2018



Other judgments by Ms Justice Aileen Donnelly