A judge in the High Court has asked the Court of Justice of the European Union (CJEU) for a ruling on the effect of recent legislative changes in Poland which are “so immense” that the court has been forced to conclude that the rule of law has been “systematically damaged” and democracy in Poland has been breached.
The referral was made in the extradition case of Artur Celmer, who is wanted to face trial in his native Poland on drug trafficking charges. He was arrested in Ireland on foot of a European Arrest Warrant last May.
In what Mr Celmer’s lawyers have called the “lead test case” in Europe on extradition to Poland, they had opposed their client’s surrender in light of recent legislative changes concerning the Polish judiciary, courts and public prosecutor, among other issues.
Referring the case for a ruling from the Court of Justice of the European Union yesterday, Ms Justice Aileen Donnelly said a number of legislative changes in Poland in the last two years were “so immense” that the High Court was forced to conclude that the rule of law in Poland has been “systematically damaged”.
In light of the changes, Ms Justice Donnelly said the European Commission had made extensive efforts at constructive dialogue but there had been little engagement by the Polish authorities. Last December, the European Commission issued a document referred to as the Reasoned Proposal for Poland. It was the first time this had occurred in respect of any Member State.
Ms Justice Donnelly said the Reasoned Proposal was “by any measure, a shocking indictment of the status of the rule of law in a European country in the second decade of the 21st Century”.
It set out, in stark terms, she said “what appears to be the deliberate, calculated and provocative legislative dismantling by Poland of the independence of the judiciary, a key component of the rule of law”.
Citing the Reasoned Proposal, she said the “constitutionality of Polish laws can no longer be effectively guaranteed” because the independence of the judiciary and legitimacy of the Constitutional Tribunal (the constitutional court) were “seriously undermined”.
Another European body, the Venice Commission, has stated that the merger of the office of the Minister for Justice with that of the Public Prosecutor General, the increased powers of both and the “weak position of checks to these powers … result in the accumulation of too many powers for one person”.
If Mr Celmer was surrendered to Poland, “he will be returning to face trial in a jurisdiction where the Minister for Justice is now the Public Prosecutor and is entitled to play an active role over the Presidents of Courts. This has the potential for a chilling effect on those Presidents” with subsequent consequences for the administration of justice, Ms Justice Donnelly said.
Counsel for Celmer, Seán Guerin SC, said the situation was “unprecedented” within the EU. He said the legislative changes in Poland were a “systemic threat to the entire system of the rule of law and, in that sense, it was not possible or even necessary to isolate [Celmer’s] circumstances in order to establish a violation”.
Mr Guerin submitted that the issues went to the heart of the European Arrest Warrant process and that assumptions of trust and confidence could no longer be relied upon.
Welcoming yesterday’s judgment, Mr Celmer’s solicitor, Ciarán Mulholland of Fahy Bambury Solicitors, said this was “an unprecedented European extradition case”.
He added: “These reforms fundamentally undermine the basis of mutual trust and recognition between Poland and the executing judicial authority. The operation of the European Arrest Warrant system involving Poland is now seriously jeopardised. This landmark case may ultimately lead to an abrupt termination of the mutual understanding between Poland and other EU member state in extradition proceedings – those potential ramifications are highly significant.”
The precise wording of the referral to Europe will be argued before the High Court next week.
Ruaidhrí Giblin, Ireland International News Agency Ltd.