Minister for Justice & Equality v Celmer

• Jurisdiction: Ireland
• Judge: O'Donnell J.
• Judgment Date: 12 November 2019
• Neutral Citation: [2019] IESC 80
• Court: Supreme Court
• Docket Number: [S:AP:IE:2018:000181]
• Date: 12 November 2019

IN THE MATTER OF THE EUROPEAN ARREST WARRANT ACT 2003 (AS AMENDED)

BETWEEN/

THE MINISTER FOR JUSTICE AND EQUALITY

APPLICANT/RESPONDENT

AND

ARTUR CELMER

RESPONDENT/APPELLANT

AND BY ORDER

THE IRISH HUMAN RIGHTS AND EQUALITY COMMISSION

RESPONDENT/APPELLANT

[2019] IESC 80

Birmingham P.

O'Donnell J.

McKechnie J.

Dunne J.

Charleton J.

[S:AP:IE:2018:000181]

AN CHÚIRT UACHTARACH

THE SUPREME COURT

Right to a fair trial – Legislative changes – Surrender – Appellant objecting to his surrender – Whether legislative changes in Poland had the effect of depriving the appellant of the right to a fair trial to such an extent as to oblige the Irish courts to refuse to surrender him in response to European arrest warrants issued in Poland

Facts: The High Court, on the 28th of November, 2018 ([2018] IEHC 687), granted a certificate of leave to appeal to the Court of Appeal on the following question: “Is the decision of [the CJEU] in [Minister for Justice and Equality v. L.M. (Case C-216/18 PPU) EU:C:2018:517] to be interpreted as meaning, where there are systemic and generalised deficiencies in the independence of the judiciary which affect the level of court in the Member State before which a person requested for surrender pursuant to a European arrest warrant will be tried in the event of being surrendered, that those deficiencies are sufficient, on their own [and in the absence of evidence of deficiencies in other safeguards for a fair trial], to establish substantial grounds that there is a real risk of a breach of the essence of the requested person’s right to a fair trial?” Given the urgency of the matter, it was agreed by the parties that an application for leave to appeal to the Supreme Court by way of “leapfrog” application should be made. By a determination of the Supreme Court on the 20th of February, 2019 ([2019] IESCDET 45), the court granted leave to appeal.

Held by O’Donnell J that, on the evidence before the court, and having applied the approach of the CJEU, the trial judge was correct in her determination.

O’Donnell J held that the appeal would be dismissed.

Appeal allowed.

Judgment of O'Donnell J. delivered the 12th day of November 2019.

Introduction

1 The appellant, Artur Daniel Celmer, is the subject of three European Arrest Warrants (“E.A.W.s”) issued by three separate regional courts in Poland (the Regional Courts of Poznan, Warsaw, and Wloclawek, respectively). The warrants seek his surrender to face trial in respect of five charges relating to offences characterised as “illicit production, processing, smuggling of intoxicants, precursors, surrogates or psychotropic substances or trafficking in same” and “participation in an organised criminal group or association whose aim is to commit the said offences”. The only ground of objection which is now under consideration is the appellant's assertion that the court should not order his surrender in reliance on the provisions of s. 37 of the European Arrest Warrant Act 2003 (as amended) (“the 2003 Act”), which provides, inter alia, that the surrender should not be effected where to do so would be incompatible with the State's obligations under the European Convention on Human Rights (“E.C.H.R.”), or would be a contravention of the Constitution.

2 The 2003 Act implements Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (as amended by Council Framework Decision 2009/299/JHA of 26 February 2009) (“the Framework Decision”). Recital 12 provides that the Framework Decision respects fundamental rights and observes the principles recognised by Article 6 of the Treaty on European Union (“TEU”) and reflected in the Charter of Fundamental Rights of the European Union (“C.F.R.E..U.” or “the Charter”).

3 The objection raised by the appellant was that systemic changes had been made to the organisation of the judiciary in Poland that had undermined the independence of the judiciary. It was contended that this, therefore, violated the respondent's right to a fair trial guaranteed by Article 47 C.F.R.E.U. A right to a fair trial is of course also guaranteed by Article 6 of the E.C.H.R. and Articles 34, 38, and 40 of the Irish Constitution. It was not suggested in this case that any different analysis would arise in respect of the rights guaranteed under either of those instruments and no issue was raised in relation to the fact that the fact that the Charter is not specifically referred to in s. 37. The fundamental issue raised was whether the legislative changes in Poland had the effect of depriving the applicant of the right to a fair trial to such an extent as to oblige the executing authority, in this case the Irish courts, to refuse to surrender him in response to the European arrest warrants issued in Poland.

4 It is perhaps helpful to set out, at this point, the applicable provisions in greater detail.

The Treaty on European Union

5 Article 2 TEU states:-

“The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.”

6 Article 6 TEU provides:-

“1. The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adapted at Strasbourg, on 12 December 2007, which shall have the same legal value as the Treaties.

The provisions of the Charter shall not extend in any way the competences of the Union as defined in the Treaties.

The rights, freedoms and principles in the Charter shall be interpreted in accordance with the general provisions in Title VII of the Charter governing its interpretation and application and with due regard to the explanations referred to in the Charter, that set out the sources of those provisions.

2. The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms. Such accession shall not affect the Union's competences as defined in the Treaties.

3. Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union's law.”

7 Article 7 TEU provides for a mechanism for the determination of a breach of the values referred to in Article 2. It provides:-

“1. On a reasoned proposal by one third of the Member States, by the European Parliament or by the European Commission, the Council, acting by a majority of four fifths of its members after obtaining the consent of the European Parliament, may determine that there is a clear risk of a serious breach by a Member State of the values referred to in Article 2. Before making such a determination, the Council shall hear the Member State in question and may address recommendations to it, acting in accordance with the same procedure.

The Council shall regularly verify that the grounds on which such a determination was made continue to apply.

2. The European Council, acting by unanimity on a proposal by one third of the Member States or by the Commission and after obtaining the consent of the European Parliament, may determine the existence of a serious and persistent breach by a Member State of the values referred to in Article 2, after inviting the Member State in question to submit its observations.

3. Where a determination under paragraph 2 has been made, the Council, acting by a qualified majority, may decide to suspend certain of the rights deriving from the application of the Treaties to the Member State in question, including the voting rights of the representative of the government of that Member State in the Council. In doing so, the Council shall take into account the possible consequences of such a suspension on the rights and obligations of natural and legal persons.

The obligations of the Member State in question under the Treaties shall in any case continue to be binding on that State.

4. The Council, acting by a qualified majority, may decide subsequently to vary or revoke measures taken under paragraph 3 in response to changes in the situation which led to their being imposed.

5. The voting arrangements applying to the European Parliament, the European Council and the Council for the purposes of this Article are laid down in Article 354 of the Treaty on the Functioning of the European Union.”

8 It should be observed at this point that a reasoned proposal dated 20 December 2017 has been made by the European Commission to the Council pursuant to Article 7(1) TEU inviting the Council to determine that there is a clear risk of a serious breach by Poland of the values referred to in Article 2 TEU in respect of the rule of law (see COM (2017) 835 (final)) (“the Reasoned Proposal”). The procedure established by Article 7(1) TEU was ongoing at the time of the proceedings in the High Court here, and has not yet concluded.

The Charter of Fundamental Rights of the European Union

9 Article 47 C.F.R.E.U. contains a guarantee of a right to a fair trial. It provides:-

“Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.

Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented.

Legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective...