Minister for Justice & Equality v Orlowski; Minister for Justice & Equality v Lyszkiewicz
| Jurisdiction | Ireland |
| Judge | Ms. Justice Dunne |
| Judgment Date | 04 August 2022 |
| Neutral Citation | [2022] IESC 37 |
| Year | 2022 |
| Court | Supreme Court |
| Docket Number | S:AP:IE:2021:000018 |
[2022] IESC 37
Birmingham P.
Dunne J.
Charleton J.
O'Malley J.
Baker J.
S:AP:IE:2021:000018
S:AP:IE:2021:000020
AN CHÚIRT UACHTARACH
THE SUPREME COURT
European arrest warrant – Surrender – Right to a fair trial – Respondent seeking the surrender of the appellants to Poland – Whether there was a real risk of breach of the right to a fair trial
Facts: The Supreme Court delivered judgment in the appeals on 23 July 2021 in respect of the request for surrender of the two appellants, Mr Orlowski and Mr Lyszkiewicz, to Poland on foot of a number of European arrest warrants. The issue before the Court concerned the test to be applied when a respondent who is the subject of a European arrest warrant seeks to resist surrender on the basis that there is a risk of violation of their rights under EU law. At issue was the extent to which the test which arose from the case of Celmer v Minister for Justice and Equality [2019] IESC 80, as set out in the decision of the Court of Justice of the European Union (CJEU) in LM (Minister for Justice and Equality (Deficiencies in the system of justice) Case C-216/18 PPU, ECLI:EU:C:2018:586, could be applied given the changes that had occurred in relation to the appointment of judges in Poland subsequent to the decision in LM. The Court requested a response to the following question from the CJEU: “Does the absence of an effective remedy to challenge the validity of the appointment of judges in Poland, in circumstances where it is apparent that the appellants cannot at this point in time establish that the courts before which they will be tried will be composed of judges not validly appointed, amount to a breach of the essence of the right to a fair trial requiring the executing state to refuse the surrender of the appellants?” The CJEU provided further clarification as to the two-step examination to be carried out in accordance with the decision of that court in LM; even though the challenge to surrender in that case was based on systemic failures in the Polish system, it is clear that a refusal to surrender can only take place where there are substantial grounds for believing that the person to be surrendered runs a real risk of breach of the fundamental right to a fair trial. The case made on behalf of the appellants was that there was no effective remedy available in Poland by which they could challenge, if necessary and appropriate, the composition of the court that was ultimately assigned or allocated to preside over the criminal proceedings against each of them.
Held by Dunne J that it was clear from the evidence that each of the appellants, prior to surrender, were not in a position to identify the judge or panel of judges who would be allocated to the conduct of their trials. Dunne J held that it could not be said with any certainty that the judges dealing with their cases would have been appointed under the new laws in Poland. Dunne J held that it was clear from the reasoned order of the CJEU that there must be objective, reliable, specific and duly updated material indicating that there is a real risk of breach of the fundamental right to a fair trial. The CJEU went on to point out it is for the person in respect of whom a European arrest warrant has been issued to adduce specific evidence to suggest that such deficiencies are likely to have a tangible influence on the handling of his or her criminal case. Dunne J held that a generalised complaint as to the possibility that the court dealing with either of the appellants may contain a judge or judges who have been appointed under the new laws was clearly not, in and of itself, sufficient to give rise to a real risk of breach of the right to a fair trial. Dunne J held that issues such as recusal or the lack of an effective remedy to bring about a challenge to the validity of the appointment of a judge allocated to try their cases could not be said to arise.
Dunne J directed the surrender of the appellants to the issuing state.
Appeals dismissed.
Judgment of Ms. Justice Dunne delivered on the 4 th day of August 2022
. This Court delivered judgment in the above-entitled appeals on the 23 rd day of July 2021 in respect of the request for surrender of the two appellants to Poland on foot of a number of European arrest warrants (EAWs). It is not necessary to set out again the background to these proceedings as that is set out in the earlier judgment of this Court and in the judgments of the High Court in each case ( Minister for Justice and Equality v Orlowski [2021] IEHC 109 (Binchy J.); Minister for Justice and Equality v Lyszkiewicz [2021] IEHC 108 (Binchy J.)), which were delivered on the same day and each of which involved the same issue. The issue before this Court concerned the test to be applied when a respondent who is the subject of an EAW seeks to resist surrender on the basis that there is a risk of violation of their rights under EU law. At issue was the extent to which the test which arose from the case of Celmer v Minister for Justice and Equality [2019] IESC 80, [2020] 1 ILRM 121, as set out in the decision of the Court of Justice of the European Union in LM (Minister for Justice and Equality (Deficiencies in the system of justice) Case C-216/18 PPU, ECLI:EU:C:2018:586, as Celmer is identified by the CJEU, could be applied given the changes that had occurred in relation to the appointment of judges in Poland subsequent to the decision in LM.
. Having considered the issues raised in the arguments before this Court, it was concluded as follows:
“59. The changes that have occurred in Poland concerning the rule of law are, as previously observed, even more troubling and grave than they were at the time when LM was decided by the CJEU. It now appears that there are significant issues with regard to the validity of the appointment process for judges in Poland. It is impossible for the appellants in this case to identify the judges before whom they are to be tried because of the manner in which cases are randomly allocated. Even if they could identify the judges and establish that the judges were not validly appointed and thus not part of a Court established by law, it is clear that there is no possibility of challenging the validity of the composition of the court allocated to try them by reason of the provisions of the new laws and, in particular, Article 26(3) thereof. That being so, the question must arise as to whether the systemic deficiencies in the Polish system are such that they, by themselves, amount to a sufficient breach of the essence of the right to a fair trial, requiring the executing authority, in this case, Ireland, to refuse surrender.
60. The answer to that question is not, in the view of this Court, acte clair and in the circumstances, this Court proposes to request a ruling from the CJEU as follows:
(1) Is it appropriate to apply the test set out in LM and affirmed in L and P where there is a real risk that the appellants will stand trial before courts which are not established by law?
(2) Is it appropriate to apply the test set out in LM and affirmed in L and P were a person seeking to challenge request under an EAW cannot by reason of the fact that it is not possible at that point in time to establish the composition of the court before which they will be tried by reason of the manner in which cases are randomly allocated?
(3) Does the absence of an effective remedy to challenge the validity of the appointment of judges in Poland, in circumstances where it is apparent that the appellants cannot at this point in time establish that the courts before which they will be tried will be composed of judges not validly appointed, amount to a breach of the essence of the right to a fair trial requiring the executing state to refuse the surrender of the appellants?”
. Following the reference, the CJEU...
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