Supreme Court: Systemic deficiencies in the independence of Poland’s judiciary not sufficient to refuse man’s surrender
A man who objected to his surrender to Poland on the basis of systemic breaches to the rule of law which would impact his fair trial rights has had his appeal dismissed by the Supreme Court.
Delivering the leading judgment, Mr Justice Donal O’Donnell said that the CJEU had made it clear that findings of generalised or even systemic deficiency were not sufficient to refuse surrender – what was required was that, specifically, “the trial of the individual on the particular charge would not be a trial before an independent court”.
In 2017, Artur Celmer was arrested on foot of three European Arrest Warrants, and his surrender has been sought by Poland.
In the High Court in March 2018, Mr Celmer objected to his surrender primarily on the ground that recent legislative changes to the judiciary, the courts, and the Public Prosecutor in Poland undermined the possibility a fair trial.
Finding systemic breaches to the rule of law in Poland which had an impact on fair trial rights, Ms Justice Aileen Donnelly referred two questions to the Court of Justice of the European Union (CJEU) for determination.
Minister for Justice and Equality v LM
In July 2018, considering the questions referred by Ms Justice Donnelly, the CJEU held:
“…the existence of a real risk that the person in respect of whom a European arrest warrant has been issued will, if surrendered to the issuing judicial authority, suffer a breach of his fundamental right to an independent tribunal and, therefore, of the essence of his fundamental right to a fair trial… is capable of permitting the executing judicial authority to refrain, by way of exception, from giving effect to that European arrest warrant, on the basis of Article 1(3) of Framework Decision 2002/584” (Minister for Justice and Equality v LM (Case C‑216/18 PPU)).
Request for further information
In August 2018, Ms Justice Donnelly said that before the issue of surrender could be decided; the Court had to make a “specific and precise” assessment as to whether there were substantial grounds for believing that Mr Celmer would run the risk of a breach of his right to be tried before an independent tribunal.
For the purpose of assessing that risk, Ms Justice Donnelly requested further information from Poland.
Judgment of the High Court under appeal
In the High Court in November 2018, Ms Justice Donnelly assessed the risk to Mr Celmer based on the further information requested. Ms Justice Donnelly said that the Court was required to make a determination as to whether Mr Celmer’s right to a fair trial (under the Constitution of Ireland, the European Convention on Human Rights, and the EU Charter on Fundamental Rights) prohibited his surrender to Poland.
Ms Justice Donnelly ruled that Mr Celmer could be surrendered despite systemic and generalised deficiencies in the courts of Poland presenting a risk to the fundamental right to a fair trial being breached. On the facts of Mr Celmer’s case, Ms Justice Donnelly was satisfied that it did not reach the “high threshold” necessary to prevent his surrender.
Based on the urgency of the case, a “leapfrog” appeal to the Supreme Court was granted. The only ground of objection considered by the five-judge Court was the assertion that Mr Celmer’s surrender should not be ordered based on Section 37 of the European Arrest Warrant Act 2003 (as amended), which states that a person shall not be surrendered if his or her surrender would be incompatible with the State’s obligations under the European Convention on Human Rights, or would be a contravention of any provision of the Constitution.
Leave was granted on the question of whether the CJEU’s ruling in LM should be interpreted as meaning that, where there are systemic and generalised deficiencies in the independence of the judiciary which affect the level of Court in the State before which a person requested for surrender pursuant to a EAW will be tried in the event of being surrendered, are those deficiencies sufficient, on their own [and in the absence of evidence of deficiencies in other safeguards for a fair trial], to establish substantial grounds that there is a real risk of a breach of the essence of the requested person’s right to a fair trial?
The Irish Human Rights and Equality Commission (IHREC), as an amicus curiae, made submissions regarding the test which should be applied and argued that the CJEU’s ruling in LM should be understood as rejecting the test of “flagrant denial” adopted by the European Court of Human Rights. Instead, the IHREC said it was sufficient to demonstrate a real risk of a breach of a right guaranteed by the EU Charter, and that the evidence in this case was sufficient to satisfy that test. Indeed it was noted that Article 52 of the EU Charter expressly permits the provision of more extensive protection in EU law than what is provided by the ECHR.
Citing the Opinion of Advocate General Sharpston in Ministerul Public v Radu (Case-396/11), the IHREC submitted that it was possible to interpret Article 47 of the EU Charter as setting a lower threshold – and therefore greater protection of the right to a fair trial – than the corresponding right in Article 6 ECHR.
Delivering the leading judgment of the Court, Mr Justice O’Donnell said that the proposition of more extensive protection of a right might be regarded a positive development, but that any guarantee of rights (apart from those deemed absolute) involved a balance. He said that he would not be willing to accept the approach suggested by the IHREC without the “clearest guidance” from the CJEU that such an approach was required.
Mr Justice O’Donnell also said that the argument advanced by the IHREC went much further than was contemplated by AG Sharpston in Radu – i.e. that “the appropriate criterion should rather be that the deficiency or deficiencies in the trial process should be such as fundamentally to destroy its fairness”.
Considering LM, Mr Justice O’Donnell said that the CJEU had made it clear that findings of generalised or even systemic deficiency were not sufficient to refuse surrender – what was required was that, specifically, “the trial of the individual on the particular charge would not be a trial before an independent court”.
Noting that systemic deficiencies could possibly amount to a sufficient breach of the essence of the right to a fair trial and require an executing authority to refuse surrender, Mr Justice O’Donnell said it was clear from LM that the systemic changes in Poland, while serious and grave, could not themselves be seen as sufficient to reach that point.
Even considering the comments made by Poland’s Deputy Minister for Justice (e.g. referring to Mr Celmer as a “dangerous criminal”), Mr Justice O’Donnell was not satisfied that the individual features of Mr Celmer’s case brought it over the threshold.
Unable to make a finding that there was a real risk that Mr Celmer would suffer a breach of the essence of his right to a fair trial, the Supreme Court unanimously dismissed the appeal.
© Irish Legal News Ltd 2020