Minister for Justice and Equality v Celmer (No.4)

• Jurisdiction: Ireland
• Judge: Ms. Justice Donnelly
• Judgment Date: 01 August 2018
• Neutral Citation: [2018] IEHC 484
• Docket Number: Record No. 2013 EXT 295 Record No. 2017 EXT 291
• Court: High Court
• Date: 01 August 2018

[2018] IEHC 484

HIGH COURT

Donnelly J.

Record No. 2013 EXT 295

Record No. 2014 EXT 8

Record No. 2017 EXT 291

BETWEEN

THE MINISTER FOR JUSTICE AND EQUALITY

APPLICANT

AND

ARTUR CELMER (No 4)

RESPONDENT

European arrests warrants – Supplementary information – Right to an independent tribunal – High Court seeking supplementary information – Whether there was a real risk to the respondent of a breach of his fundamental right to an independent tribunal

Facts: Donnelly J, on 12th March 2018, in light of legislative changes made in Poland and the implications for fair trial rights in criminal proceedings, decided to refer questions to the Court of Justice of the European Union (CJEU) arising out of the execution of three European arrests warrants (EAW) issued in respect of the respondent, Mr Celmer. Following the adoption of the urgent preliminary ruling procedure as requested by the High Court, judgment was delivered by the Grand Chamber on 25th July 2018 (Case C-216/18 Minister for Justice and Equality v LM [2018] OJ C190/18). On 23rd July 2018, in anticipation of the delivery of the judgment, Donnelly J listed the matter for further hearing on the 30th July 2018. In the course of the hearing it became apparent that the applicant, the Minister for Justice and Equality, and the respondent had different interpretations of the decision of the CJEU, pivoting on the sequencing of the stepped process for the specific and precise assessment of whether the requested person is at real risk of an unfair trial and the nature of any consequential evidential burden on the requested person. The respondent requested an adjournment to the new term to give him further time to consider the judgment with a view to putting forward any additional evidence then deemed necessary. That request for an adjournment was without prejudice to his contention that there was sufficient evidence before the High Court as to the specific and precise risk he faced which required the Court to revert to the Polish judicial authority for supplementary information to assess that risk. Donnelly J set a trial date for the hearing of the substantive application. At issue in this judgment was whether Donnelly J should seek supplementary information for assessing whether there was a real risk to this requested person of a breach of his fundamental right to an independent tribunal, having regard to his personal situation as well as the nature of the offence for which he was being prosecuted.

Held by Donnelly J that, in light of the evidence, she was of the view that it was necessary to seek further information from the issuing judicial authority to enable her to assess the real risk to the respondent of breach of his fundamental right to an independent tribunal and therefore of the essence of his fundamental right to a fair trial.

Donnelly J held that she would invite counsel on both sides to submit draft questions to her for submission to the issuing judicial authority pursuant to the provisions of s. 20 of the European Arrest Warrant Act 2003.

Judgment approved.

JUDGMENT of Ms. Justice Donnelly delivered on the 1st day of August, 2018

Introduction

1 On 12th March 2018, I delivered a preliminary judgment in this matter. In light of recent legislative changes made in Poland and the implications for fair trial rights in criminal proceedings, I decided to refer two questions to the Court of Justice of the European Union (CJEU) arising out of the execution of three European arrests warrants (EAW) issued in respect of this respondent. Those questions were as follows:

'a. Notwithstanding the conclusions of the Court of Justice in Aranyosi and Caldararu, where a national court determines there is cogent evidence that conditions in the issuing Member State are incompatible with the fundamental right to a fair trial because the system of justice itself in the issuing Member State is no longer operating under the rule of law, is it necessary for the executing judicial authority to make any further assessment, specific and precise, as to the exposure of the individual concerned to the risk of unfair trial where his trial will take place within a system no longer operating within the rule of law?

b. If the test to be applied requires a specific assessment of the requested person's real risk of a flagrant denial of justice and where the national court has concluded that there is a systemic breach of the rule of law, is the national court as executing judicial authority obliged to revert to the issuing judicial authority for any further necessary information that could enable the national court discount the existence of the risk to an unfair trial and if so, what guarantees as to fair trial would be required?'

2 Following the adoption of the urgent preliminary ruling procedure as requested by this Court, judgment was delivered by the Grand Chamber on 25th July 2018 ( Case C-216/18 Minister for Justice and Equality v LM [2018] OJ C190/18). On 23rd July 2018, in anticipation of the delivery of the judgment, I listed this matter for further hearing on the 30th July 2018.

3 In the course of the hearing on 30th July, 2018, it became apparent that the minister and the respondent had different interpretations of the decision of the CJEU in this case. Very briefly, the difference in interpretation pivoted on the sequencing of the stepped process for the specific and precise assessment of whether the requested person is at real risk of an unfair trial and the nature of any consequential evidential burden on the requested person. In the course of the submissions, it also became clear that the respondent was requesting, and the minister was not objecting to, an adjournment to the new term to give the respondent further time to consider the judgment with a view to putting forward any additional evidence then deemed necessary. That request for an adjournment was without prejudice to the respondent's contention that there was sufficient evidence before the Court as to the specific and precise risk the respondent faced which required this Court to revert to the Polish judicial authority for supplementary information to assess that risk.

4 I have set a trial date for the hearing of the substantive application at the beginning of next term. The only issue in this judgment is whether I should, at this time, seek supplementary information for assessing whether there is a real risk to this requested person of a breach of his fundamental right to an independent tribunal, having regard to his personal situation as well as the nature of the offence for which he is being prosecuted. It is therefore necessary to examine the substantive findings of the CJEU.

The CJEU Judgment

5 The CJEU affirmed that limitation may be placed on the principles of mutual recognition and mutual trust between Member States in exceptional circumstances (see para 43). Article 1(3) of the Framework Decision 2002/584 of 13th June, 2002 on the European arrest warrant and the surrender procedures between Member States ('the Framework Decision') does not have the effect of modifying the obligation to respect fundamental rights and the fundamental legal principles enshrined in Article 2 and 6 TEU. The CJEU went on to determine that the requirement of judicial independence forms part of the essence of the fundamental right to a fair trial. This right to a fair trial is of cardinal importance as a guarantee that all the rights which individuals derive from EU law will be protected, and that the values common to the Member States set out in Article 2 TEU, in particular the value of the rule of law, will be respected (see para 48).

6 In criminal procedures, for the purpose of prosecution, or of enforcement of a custodial sentence, or detention order, or indeed, in substantive criminal proceedings, Member States are still obliged to observe fundamental rights enshrined in the ECHR or laid down by their national law, including the right to a fair trial and the guarantees deriving from it. At para 58, the Court concluded that the high level of trust between Member States on which the European arrest warrant mechanism is based, is thus founded on the premise that the criminal courts of the other Member States will have to conduct criminal procedures that meet the requirements of effective judicial protection, which include in particular, the independence and impartiality of those courts. On that basis, the CJEU held that the existence of a real risk that the requested person will suffer a breach of his fundamental right to an independent tribunal is capable of permitting the executing judicial authority to refrain, by way of exception, from giving effect to that EAW on the basis of Article 1(3) of the Framework Decision.

7 At para 61, the ECJ set out that the executing judicial authority:

'must, as a first step, assess, on the basis of material that is objective, reliable and properly updated concerning the operation of the system of justice in the issuing Member State (see.....), whether there is a real risk connected with a lack of independence of the courts of that Member State on account of systemic or generalised deficiencies there, of the fundament right to a fair trial being breached. Information in a reasoned proposal recently addressed by the Commission to the Council on the basis of Article 7(1) TEU is particularly relevant for the purposes of that assessment.'

8 From para 62 to 67 the CJEU addressed the nature of the guarantee of independence. Those paragraphs are of the utmost importance to the assessment of whether the evidence of the overall legislative changes in Poland demonstrate that there is a real risk of the fundamental right to a fair trial being breached because of a lack of independence of the courts. As it appears from the CJEU judgment, courts must be free to exercise functions wholly autonomously, without being subject to any...