A Polish man currently being held on a European Arrest Warrant (EAW) in an Irish jail would get a fair trial if deported to Poland, lawyers for Ireland will tell an EU court in Luxembourg this week.
The hearing on Friday before the 17-member grande chambre of the Court of Justice of the European Union (CJEU) will consider the referral of a question from the Irish High Court’s Ms Justice Aileen Donnelly. She asked if the CJEU thinks the “systematic damage” to and erosion of the rule of law in the Polish judicial system is such as to make a fair trial unlikely.
The case has been given “expedited” status by the court because it involves someone currently in custody and there are believed to be other similar cases pending. Some European lawyers argue that if the CJEU finds against the Polish government, it could entirely halt extraditions to the country throughout Europe.
Lawyers for the Attorney General are expected to acknowledge Ms Justice Donnelly's concerns about the Polish judicial "reforms", but to argue that 31-year-old Artur Celmer, sought in Poland on drug-trafficking charges relating to offences in 2007, would nevertheless still get a fair trial.
The referral caused a sensation in Poland whose conservative government is currently doing battle with the European Commission and fellow member states over precisely this issue. Indeed, the commission's formal case to member states against Poland – "Reasoned proposal in accordance with article 7(1) of the TEU regarding the rule of law in Poland" – was central to the Irish judge's reasoning.
The case is being closely watched in Poland and the country's deputy justice minister Marcin Warchol has accused the Irish High Court of engaging in "political games". Press and social media critics attacked the judge mercilessly. One paper was headlined: "Irish lesbian judge suspends the extradition of a Polish criminal".
Ms Justice Donnelly had said "immense" legislative changes to Poland's judicial system under the ruling Law and Justice (PiS) party called into question the rule of law and judicial independence, and thus the mutual trust between member states that underpins the whole EAW system.
It is understood that the commission, which is asked for its opinion by the CJEU in such cases, will adopt a position akin to Ireland’s – that the defendant could nevertheless get a fair trial. Mr Celmer’s lawyers will dispute that contention.
At the hearing, the Polish government will argue that Ms Justice Donnelly has drawn selectively on European Commission documents but ignored its arguments. Nor, it says, has she articulated specific concerns showing that Mr Celmer would not face a fair trail.
It insists the separation of powers between the judiciary and the executive has not been affected by recent reforms to court operations, judicial appointments or the bodies that appoint judges.
One source says the Polish lawyers have also argued, in the paperwork for the court, that Ireland’s own judicial appointments system is scarcely independent of the executive, and that, logically, Poland might raise similar objections to extraditions to Ireland. That will be music to Minister for Transport Shane Ross’s ears.