The Supreme Court has ordered the extradition of a Polish man in a landmark case at the centre of controversy after an Irish judge raised concerns about the impact of “systemic” violations of the independence of the Polish judiciary.
The five-judge court's unanimous decision on Tuesday in the case of Artur Daniel Celmer, who is wanted for drug trafficking offences, has implications for about 45 other cases here awaiting the outcome.
The Irish Human Rights and Equality Commission had made submissions on legal issues in the case.
Giving the main judgment, which applied a Court of Justice of the EU decision to the case, Mr Justice Donal O’Donnell said on Tuesday there was “clear evidence” of breach of Poland’s obligations under the European Union Charter and Treaty arising out of the changes there.
The changes include the invalidation of certain judicial appointments, permitting extraordinary appeals allowing the Polish Supreme Court overturn earlier decisions of the Polish courts and reducing the compulsory retirement age for judges from 70 to 65.
There was also clear evidence of a breach of the level of independence of courts at the level which would decide Mr Celmer’s case, he said.
However, the available evidence did not, on its own, satisfy all elements of the test set out by the CJEU for determining whether there was a “real risk” the impact of the legislative changes would mean Mr Celmer would be tried before a court that was not independent and would therefore suffer a breach of the essence of his right to a fair trial.
There were additional factors including some of the “systemic deficiencies” were clear statements made by the polish deputy minister for justice about Mr Celmer, including describing him as a “dangerous criminal”.
These statements, in themselves, would give rise to considerable concern in their own terms but it was not suggested Mr Celmer would be tried before a jury which might be affected by them and they had also been discounted by a judicial representative of the warrant issuing judicial authority in Poland, he said.
In all the circumstances, the judge concluded, while individual features of the case were “troubling”, the High Court had correctly decided the threshold identified by the CJEU for refusing surrender had not been reached. The CJEU test was “not easy to apply”, he also observed.
In an apparent reference to criticism in Poland of the Irish High Court’s Ms Justice Aileen Donnelly after she had referred issues in the case to the CJEU, Mr Justice O’Donnell stressed no court, in any jurisdiction, should be subjected to “irresponsible or abusive” commentary from governmental or official sources.
This was particularly so when the court is considering the effect of changes to a judicial system “alleged to make that system subordinate to, and under the influence of, the executive and the legislature”.
Further changes to the structure of the administration of justice in Poland and developments at EU level may affect the Irish courts’ consideration in other cases of whether there has been breach of fair trial rights, he added.
The European Commission has invited the European Council to determine there is a real risk of a serious breach by Poland of the values - including respect for the rule of law and human rights - referred to in Article 2 of the EU Treaty but the relevant procedure in that regard has not yet concluded, he noted.
Mr Justice George Birmingham, Ms Justice Elizabeth Dunne and Mr Justice Peter Charleton agreed with his judgment.
In a separate concurring judgment, Mr Justice William McKechnie said political interference by the Polish deputy minister in this matter, and the focussing on Mr Celmer by name, “is a practice I utterly condemn”.
Following the judgment, the court told Siobhán Ni Chulacháin, for the State, and Seán Guerin SC, for Mr Celmer, the extradition would take place in the usual way.
Ms Justice Donnelly had in 2018 referred the case to the CJEU after finding “generalised and systemic” violations to the independence of the Polish judiciary “gave rise to a real risk” fair trial rights would be breached.
Mr Celmer’s lawyers had argued he faced a risk of an unfair trial because of “radical changes” to the Polish justice system.
Ms Justice Donnelly postponed her decision on the extradition request pending the CJEU ruling.
The CJEU later said, while lack of independence of the courts of a member state issuing a European arrest warrant may, in principle, amount to denial of justice, it must be “so serious that it destroys the fairness of the trial.”
It said it was for the Irish court to determine whether this was so on the basis of objective, reliable, specific and properly updated information demonstrating the deficiencies affecting the Polish system of justice exist.
When the case returned to Ms Justice Donnelly in November 2018, she said she was only concerned with determining, in accordance with the CJEU ruling, the issues in Poland as they specifically related to Mr Celmer.
She concluded, of themselves, the systemic and generalised deficiencies in the independence of the Polish judiciary did not reach the threshold of amounting to a real risk of a flagrant denial of a fair trial.
Mr Celmer’s lawyers then secured an appeal directly to the Supreme Court.