EU court opinion says Irish judge must decide on Polish rule of law
Court of Justice in Luxembourg hears case over man fighting extradition from Ireland
European Court of Justice in Luxembourg. Photograph: John Thys/AFP/Getty Images
A Polish man fighting extradition from Ireland will have to demonstrate why he personally could not expect a fair trial at home if an Irish court deems its rule of law regime is defective, the EU’s court has been told.
The High Court referred his case to the European Court of Justice earlier this year after Ms Justice Aileen Donnelly raised concerns that the alleged undermining of the judiciary by Poland’s right wing government could mean that Mr Celmer might not get a fair trial.
In his formal opinion on an Irish referral to the Luxembourg court, Advocate General Evgeni Tanchev argues that an extradition request by Poland should be delayed if the High Court in Dublin finds not only that there is a real risk of flagrant denial of justice on account of deficiencies in the system of justice in Poland but also that the person who is the subject of the warrant is exposed to such a risk.
The formal opinion of the court’s advocate general is usually followed by the full court. If the full Court of Justice agrees, the case will then return to the High Court in Dublin for it to consider.
Denial of justice
The EU court, in Minister for Justice v LM, was hearing a referral of two questions from Ms Justice Aileen Donnelly of the High Court: whether Cermel could get a fair trial in Poland, given what she said was the “systematic” erosion of the principles of the rule of law and the independence of the judiciary by the Polish government, and what other, if any, evidence would be required to establish that.
The case has been given “expedited” status by the European court because it involves someone currently in custody and the case is seen as having implications for the execution of Polish applications under the European Arrest Warrant throughout the EU.
The advocate general did not consider whether there was a breakdown in the rule of law in Poland but said it was up to, and right for, the Irish court to consider that.
It cannot be ruled out that lack of independence of the Polish courts may, in principle, he said, amount to “a flagrant denial of justice”.
However, in order for that to be the case, the lack of independence must be so serious that it destroys the fairness of the trial.
That is for the Irish court to determine, on the basis of those considerations, whether, in the case in point, the alleged lack of independence of the Polish courts is so serious that it destroys the fairness of the trial and accordingly amounts to a flagrant denial of justice.
Even assuming that there a real risk of flagrant denial of justice on account of the recent reforms of the system of justice in Poland, the attorney general argues, this cannot be taken to mean that no Polish court is capable of hearing any case whatever in compliance with the right to a fair trial.
Accordingly, to hold up an extradition, the Irish court must also to show that the individual concerned is personally exposed to the risk of flagrant denial of justice. If it finds that, he says, it must also then offer the Polish authorities the opportunity to answer the case made against them.