High Court: Determination on surrender of accused to Poland referred to CJEU due to rule of law concerns



The High Court has referred two questions for determination to the CJEU, based on the finding that there has been a systemic breach to the rule of law in Poland.

Stating 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 said it was necessary to request a ruling from the CJEU on the matter.

European Arrest Warrants

Since May 2017, Artur Celmer has been in custody having been arrested on foot of two European Arrest Warrants, and he was arrested on the third EAW in November 2017.

Pursuant to the three European Arrest Warrants, Mr Celmer’s surrender was sought by the Republic of Poland.

Mr Celmer objected to his surrender primarily on the ground that recent legislative changes to the judiciary, to the courts, and to the Public Prosecutor in Poland undermined the possibility a fair trial. Mr Celmer also opposed his surrender on the basis of prison conditions in Poland.

Justice Donnelly said that the true issue was whether surrender would be prohibited by s. 38 of the European Arrest Warrant Act 2003

Considering each EAW in turn, Justice Donnelly said there was no manifest error in the certification of the offences, that the minimum gravity requirements set out in the Framework Decision, and his surrender was not prohibited under s. 38 of the European Arrest Warrant Act 2003. Justice Donnelly also rejected Mr Celmer’s arguments in relation to violations of Article 3 ECHR and Article 8 ECHR.

Poland’s legislative changes and the European Commission’s recommendations

Mr Celmer’s submissions focused primarily on the issue of fair trials as a result of the cumulative legislative changes in Poland. Mr Celmer’s principal contention was that recent legislative changes and proposed legislative changes in Poland created a real risk of a flagrant denial of justice in Poland.

The principal submission was that these changes fundamentally undermine the basis of mutual trust between the issuing and executing judicial authorities, calling into question the operation of the EAW system.

Reliance was mainly placed upon the European Commission’s “Reasoned proposal in accordance with Article 7(1) of the Treaty on European Union regarding the rule of law in Poland” dated December 2017. The subheading of this reads “Proposal for a council decision on the determination of a clear risk of a serious breach by the Republic of Poland of the rule of law”. The Reasoned Proposal expressed “deep concern about the situation of the rule of law in Poland”, representing a “clear risk of a serious breach of the values referred to in Article 2 TEU”.

Justice Donnelly explained that the decision by the Commission to send this reasoned proposal, (which included four recommendations on the rule of law), to the European Council under Article 7(1) was the first time that this occurred in respect of any Member State.

Considering the legislative changes in Poland to which the Commission expressed concern, Justice Donnelly emphasised that the effectiveness of a constitutional justice system was a key component of the rule of law, and observed that “violation of the constitutional order in Poland is a violation of the rule of law in Poland”.

Justice Donnelly continued, “The totality of changes in Poland, especially as regards the constitutional role in safeguarding independence of the judiciary by the National Council for the Judiciary, combined with the Polish government persisting with invalid appointments to the Constitutional Tribunal and refusing to publish certain judgments, also amounts to an undermining of the rule of law. It is a basic principle underpinning democracy that the state will function in accordance with law”.

Considering all the evidence, Justice Donnelly said that there was “no guarantee that laws in Poland will comply with the Polish Constitution”. She added that “…cherry-picking individual changes in the legislation is neither necessary nor helpful because it is the impact of the cumulative changes on the rule of law that is particularly concerning”

Considering the effect of the legislative changes in Poland, and the impact on fair trial rights, Justice Donnelly was satisfied that this raised issues “with respect to the interpretation of the 2002 Framework Decision in the context of a finding by an executing judicial authority that a member state breached Article 2” of the TEU.

Reference to CJEU

Considering Article 267 of the Treaty on the Functioning of the European Union, Justice Donnelly said it was necessary to request a ruling from the CJEU on the following matters:

  1. Is the Aranyosi and Caldararu test, which relies upon principles of mutual trust and mutual recognition, the correct test to apply where the High Court, as an executing judicial authority under the Framework Decision, has found that the common value of the rule of law set out in Article 2 TEU has been breached in Poland?
  2. If the test to be applied is whether the requested person is at real risk of a flagrant denial of justice, does the High Court, as an executing judicial authority, have to revert to the issuing judicial authority for any further necessary information about the trial that this requested person will face, where the High Court has found that there is a systemic breach to the rule of law in Poland?

  • by Seosamh Gráinséir for Irish Legal News