The Supreme Court wants the Court of Justice of the European Union (CJEU), in light of "even more troubling" changes concerning the rule of law and appointment of judges in Poland, to decide legal issues affecting whether Ireland should surrender two men to Poland.
The five-judge court said on Friday the question must arise whether “systemic deficiencies” in the Polish system are such that they, by themselves, amount to a sufficient breach of the essence of the right to a fair trial requiring Ireland to refuse surrender.
Changes in Poland since a previous CJEU decision, the LM/Celmer decision, are “even more troubling and grave” and it “now appears there are significant issues with regard to the validity of the appointment process of judges in Poland”, it said.
It is “impossible” for the two men to identify the judges before whom they are to be tried because of the manner in which cases are “randomly allocated”. Even if they could identify the judges and establish the judges were not validly appointed, and thus not part of a court established by law, there is no possibility, as a result of the new laws, of challenging the composition of the court allocated to try them.
The court said it considered the answer to whether the systemic deficiencies breach the essence of the right to a fair trial had not already been decided by previous CJEU decisions.
It noted that several bodies, including the Polish supreme court and the Polish commissioner for human rights, had expressed serious concern about the new laws.
The changes brought about by the new laws are “far-reaching and concerning”, particularly in light of the deficiencies in the Polish system previously identified in cases such as LM/Celmer, it said.
It wants a ruling from the CJEU as to whether it is appropriate to apply the legal test, set out in the LM/Celmer decision, and affirmed in another decision, Land P, “where there is a real risk that the appellants will stand trial before courts which are not established by law”.
It wants the CJEU to decide if it is appropriate to apply that test where a person seeking to challenge a request under a European arrest warrant (EAW) for their surrender cannot because it is not possible, at that time, to establish the composition of the courts before which they would be tried because of how cases are randomly allocated.
The CJEU is also asked to decide if the absence of an effective remedy to challenge the validity of the appointment of judges in Poland, in circumstances where it is apparent the two men cannot, at this time, establish that the courts before which they would be tried would be composed of judges validly appointed, breach the essence of the right to a fair trial requiring the executing state to refuse the surrender of the applicants.
A core concern is that article 26 of the new laws in Poland deprives the men of the right to challenge the validity of the appointment of a judge in Poland.
The judgment was of a court comprising Mr Justice George Birmingham, Ms Justice Elizabeth Dunne, Mr Justice Peter Charleton, Ms Justice Iseult O'Malley and Ms Justice Marie Baker. The exact wording of the reference will be decided later.
It arose after the Supreme Court agreed to hear appeals by the men, both subject of a number of EAWs issued by Poland, against High Court orders for their surrender.
The men’s core claim is the situation has changed in Poland since the LM/Celmer decision of 2019, issued after a Supreme Court reference to the CJEU, setting out a two-step analysis for EU member states to undertake when a respondent seeks to oppose surrender on grounds of a risk of violation of their EU law rights.
That analysis requires a court to (1) identify whether generalised and systemic deficiencies exist in the requesting member state that give rise to a breach of rights under the European Charter and European Convention on Human Rights and (2) identify a real risk that on substantial grounds the essence of the fundamental right would be breached.
The test was affirmed last year by the CJEU in two joined cases referred to as the LandP case
In their appeals, both men argued that, since LM/Celmer, the situation in Poland had changed. They said new laws which came into force in Poland in February 2020 raised the possibility that the courts in Poland which would consider their cases may not be constituted in accordance with law in the matter set out in a European court decision delivered earlier this year. No mechanism exists in Poland to challenge this illegality, they claimed.
In opposing their appeals, the Minister for Justice argued that the men could not complain of a “theoretical” breach of their rights.