On 4 of March 2019 the Supreme Court agreed to hear a further appeal over the extradition of a Polish man accused of drug trafficking. Artur Daniel Celmer’s extradition case was at the centre of controversy when High Court Judge Aileen Donnelly referred it to the Court of Justice of the European Union (‘CJEU’).
Judge Donnelly had found “generalised and systemic” violations to the independence of the Polish judiciary which “gave rise to a real risk” that fair trial rights would be breached.
It arose after Mr. Celmer’s lawyers argued that he faced a risk of an unfair trial because of “radical changes” to the Polish justice system, which has put the country at odds with the European Union in recent years.
In June, advocate general to the CJEU, Evgeni Tanchev, said while it cannot be ruled out that lack of independence of the courts of member states issuing a European Arrest Warrant (‘EAW’) may, in principle, amount to a flagrant denial of justice, it must be “so serious that it destroys the fairness of the trial”.
With this, Donnelly ordered the extradition of Celmer.
Mr. Celmer’s lawyers sought leave from the Supreme Court to bring a further appeal on grounds that the case involved a matter of general public importance. Among their grounds were that judges at all levels are subject to significant pressure from the Polish Minister for Justice, who has disciplinary powers over them, and who influences how they are appointed and replaced. This is particularly pernicious in the context of criminal trials because the Minister is also the public prosecutor, it was claimed.
However, the Supreme Court has unanimously ordered the extradition of Mr. Celmar in a decision delivered on 12 of November 2019.
Giving the main judgement, Mr Justice Donal O’Donnell said 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 seventy-five to sixty-five.
Although O’Donnell acknowledges that these changes would have a negative impact on Mr. Celmer if he was extradited, the “real risk” test was not satisfied based on the evidence provided by the applicant.
There were additional factors including clear statements made by the Polish Deputy Minister for Justice about Mr. Celmer which alluded that he was a “dangerous criminal”. There statements, in themselves, would give rise to considerable concern, however it was not suggested that Mr. Celmer would be tried before a jury which may have affected him greatly.
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 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 or the EU Treaty but the relevant procedure in that regard has not yet concluded, he noted.
Click here for the judgement in Minister for Justice v Celmer.