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On 19 November, the Irish High Court ordered the surrender of Mr Artur Celmer based on three European Arrest Warrants (EAW) issued by Poland. Based on the evidence provided by the parties on the rule of law situation in Poland, the Court did not consider that the threshold preventing surrender had been reached.
The correct test or threshold to be applied
As expressed by the Irish High Court, in the ruling of the Court of Justice of the European Union (CJEU) of 25 July 2018, following the request for a preliminary ruling from the Irish High Court of 23 March 2018, the CJEU confirmed that there was not only a right but in certain circumstances a duty for the executing authority to question the independence of the Polish judiciary in determining whether a requested person can receive a fair trial in Poland.
The CJEU considered that the court in the executing member state could refuse to extradite if it finds a “real risk” of breach of the essence of the person’s fundamental right to a fair trial. The Irish High Court had to consider if this was a new threshold or another way of expressing the flagrant denial of human rights test developed by the European Court of Human Rights (ECtHR) in relation to the right to a fair trial enshrined in Article 6 of the European Convention of Human Rights (ECHR). In the absence of a clear indication from the CJEU that this threshold is different than the well-established flagrancy threshold, the Irish High Court considered that the CJEU did not amend the flagrant denial of justice test.
The Irish High Court confirmed the understanding of the CJEU test as requiring not only systemic and generalised deficiencies, but also specific deficiencies at the level of the proposed trial court as well as substantial grounds for believing that the individual concerned will run a real risk of breach of the essence of his fundamental right to a fair trial. The Court specified, quoting the CJEU ruling, that the assessment has to have regard to the requested persons personal situation, as well as the nature of the offence for which he is being prosecuted and the factual context that form the basis of the EAW (paragraph 62).
Burden of proof
The question is then which party should provide the information required to make such an assessment? In its reference for a ruling, the Court had specifically indicated that it appears unrealistic to require a requested person to go further and demonstrate how, in their individual case, these defects will affect their specific trial. This was and remains Fair Trials concern when we sought leave to intervene in the Irish High Court proceedings in March 2018.
In the case at hand, the Irish High Court had requested that the issuing judicial authorities in Poland comment on a series of questions, including the general rule of law situation in Poland and the potential effect of the situation on the trial of Mr. Celmer if he was to be surrendered. Mr Celmer also submitted evidence by way of an expert report from three lawyers in Poland. The Court considered that this was in line with the CJEU ruling, which in paragraph 75 specifies that: the executing judicial authority must also assess, in the light of the specific concerns expressed by the individual concerned and any information provided by him.
On the basis of the evidence provided, the Irish High Court was satisfied that there was evidence of systemic and generalised breaches: there is 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 (paragraph 93). The Irish High Court was also satisfied that these deficiencies apply to the court level before which Mr Celmer would be tried if surrendered. In particular, one of the two Polish judges gave evidence of individual cases where judges have been summoned for disciplinary proceedings arising from politically controversial rulings.
But it was not sufficient for Mr Celmer to argue that because a Member State has departed so completely from the common values of the rule of law, it is possible to conclude that in his individual case that he runs a real risk of the fundamental right to a fair trial being breached. A finding of systemic and generalised breaches of the independence of the courts, even at the court of trial, are not of themselves sufficient to amount to a flagrant denial of the right to a fair trial (paragraph 69).
The Irish High Court considered that the CJEU ruling required it to make a more individualised assessment, and that the burden of proof was on Mr Celmer in this respect. However, the evidence submitted by Mr Celmer was directed at the institutional nature of the changes to the Polish judicial system aimed at demonstrating the lack of independence of the courts. But the right to a fair trial covers multiple aspects and the Court considered that Mr Celmer did not submit evidence to show that any other aspect of the right to a fair trial.
Critically, the Court stated that: there has been no production of statistics or even anecdotal evidence of trials lacking in fairness since the changes regarding the judiciary in Poland. Moreover, it has never been suggested that the right to know the nature of the charge, the right to counsel, the right to an interpreter, the right to challenge evidence and the right to present evidence, have in any way been affected. The Court considered that all the other indices of fair trial rights in Poland remained intact.
The only other aspect of the right to a fair trial raised by Mr Celmer was in relation to the presumption of innocence. Adverse public statements had been made by ministry officials in the press, including in particular by the deputy justice minister who was quoted as calling Mr Celmer a dangerous criminal connected to a drugs mafia. Such statements are in principle in violation of the EU Directive on the presumption of innocence 2016/343 which in Article 4 requires Member States to take the necessary measures to ensure that, for as long as a suspect or an accused person has not been proved guilty according to law, public statements made by public authorities, and judicial decisions, other than those on guilt, do not refer to that person as being guilty.
However, these statements were not sufficient to meet the individualized risk assessment threshold. The Court considered that there was nothing to indicate that the statements of public officials are taken into account in the judicial decision making process in Poland: only the facts and evidence collected and taken in the trial under law can be utilized in determining a case (paragraph 110). Moreover, the Court considered that Mr Celmer had possible remedies, including defamation.
Yet as the Court highlighted, the evidence submitted by the Polish judges revealed how regularly comments are made about ongoing cases: even if these kind of statements do not have a direct effect on how judges will decide a particular case, they are being made against a background of control over the Court Presidents and in particular by the Minister of Justice who can dismiss them in their term of office of particular low effectively in the field of administrative supervision or work organization (paragraph 112).
Nevertheless the Court concluded that there is sufficient evidence that these comments will not have any significance in establishing whether or not Mr Celmer is an offender who committed the acts. This is a disappointing outcome. It is incredibly difficult of course to assess the influence of such statements and the media in general on judicial decision-making, and on the outcome of specific cases. And it becomes all together an impossible ask for an individual to demonstrate such a risk.
A missed opportunity
The Irish High Court considered that the finding of the CJEU sits more readily with the assessment of fair trial rights in the context of extradition that has been identified by the ECtHR, and that if the CJEU had intended to depart from the ECtHR jurisprudence, it would have expressly stated so. This is in our view a missed opportunity for the CJEU to encourage national courts to apply higher standards in the context of the EAW, despite the EAW requiring more enhanced cooperation between the EU Member States, than in the context of extradition between Council of Europe countries.
In its interpretation and application of the CJEU test, the Irish High Court set an extremely high bar and, in our view, an excessive burden on persons challenging surrender proceedings. Fair Trials will be following closely how other national courts grapple with the CJEU test. The English court in the recent Lis, Lange and Chmielewski ruling arguably took an even more restrictive approach, by refusing to surrender three Polish nationals unless exceptional circumstances are demonstrated. We await the outcome of the proceedings before the Amsterdam District Court in relation to the surrender of Polish nationals. A divergence of approach by national courts with respect to the CJEUs test may call for a further preliminary reference to Luxembourg on this issue, including clarification on whether by using different language, the CJEU did in fact intend to depart from the excessively restrictive flagrant denial test of the ECtHR.
Update June 2019: in its judgment C619/18 (Commission v. Poland) of 24 June 2019, the CJEU has since continued to build upon its jurisprudence on the meaning of the independence of the judiciary as entailing two key aspects:
- External aspect: the court concerned must exercise its functions wholly autonomously, without being subject to any hierarchical constraint or subordinated to any other body and without taking orders or instructions from any source whatsoever, thus being protected against external interventions or pressure liable to impair the independent judgment of its members and to influence their decisions; and
- Internal aspect: to ensure that an equal distance is maintained from the parties to the proceedings and their respective interests with regard to the subject matter of those proceedings, the principle requires the objectivity and the absence of any interest in the outcome of the proceedings apart from the strict application of the rule of law.
The question remains to what extent the failure to meet these requirements on a systemic level should lower the high bar set by the CJEU in the Celmer case, and even lead, in such circumstances, towards a shift of the burden of proof onto the State to show that an individuals right to a fair trial will be guaranteed.
