The Curious Case of Artur Celmer
| Pages | pp 34 - 66 |
| Published date | 12 January 2022 |
| Date | 12 January 2022 |
34
e Curious Case of Artur Celmer
HANS FISCHERKERRANE*
I. Introduction
On 5 May 2017, Artur Celmer, a Polish national, was arrested in Ireland on foot
of three European Arrest Warrants issued by Polish authorities for his alleged
involvement in drug tracking oences. When brought before the High Court in
Ireland, Celmer informed the Court that he objected to his surrender to Poland.
us began a long line of litigation which included six judgments of the Irish High
Court,1 a preliminary reference to the Court of Justice of the European Union
(‘CJEU’),2 and ultimately ended up before the Supreme Court of Ireland.3
e Supreme Court ultimately decided that the surrender of Celmer to the
Polish authorities could proceed. In so determining, the courts were required to
consider the political situation in Poland, where the governing party Prawo i
Sprawiedliwość (Law and Justice in English) (‘PiS’) had sought to implement, inter
alia, judicial reforms which raised real concerns as to the respect for the rule of
law in Poland. Consequently, what appeared on its face to be a standard surrender
request exploded into an international news story in March 2018, when the Irish
High Court raised doubts as to whether the fair trial rights of Celmer would be
upheld were he to be surrendered to Poland and whether in such circumstances,
the proposed surrender could be allowed to proceed.4 ese doubts prompted the
High Court to refer the issue by way of preliminary reference to the CJEU.5
* e author has a B.C.L (NUI Galway) and LL.M (University of Amsterdam). He also has a B.L
Degree (e Honorable Society of the King’s Inns). He is currently a Parliamentary Researcher
(Law) in the Houses of the Oireachtas. e author would like to acknowledge the assistance of
the editorial team and the peer reviewers. Any views or opinions expressed in this article are the
personal views and opinions of the author.
1 Minister for Justice and Equality v Celmer [2018] IEHC 119 (‘Celmer (No. 1)’); Minister for Justice
and Equality v Celmer [2018] IEHC 153 (‘Celmer (No. 2)’); Minister for Justice and Equality v
Celmer [2018] IEHC 154 (‘Celmer (No. 3)’); Minister for Justice and Equality v Celmer (No. 4)
(‘Celmer (No. 6)’).
2 Case C-216/18 PPU LM (Request for a preliminary ruling under Article 267 TFEU om the High
Court (Ireland)) [2018] OJ C 328 (‘LM’).
3 Minister for Justice and Equality v Celmer [2019] IESC 80, [2020] 1 ILRM 121 (‘Celmer (SC)’).
4 Christian Davies, ‘Ireland refuses extradition over concern at Polish justice reforms’ e Guardian
(London, 13 March 2018); Arthur Beesley, ‘Irish court refuses extradition over Polish legal
“defects”’ Financial Times (London, 13 March 2018).
5 Derek Scally and Colm Keena, ‘Poland attacks High Court over delayed extradition’ e Irish
Time s (Dublin, 14 March 2018).
e Curious Case of Artur Celmer 35
Under the EU system, member states have reciprocal obligations to one another
under various treaties which, in general, can only be suspended with a unanimous
vote of the European Council.6 As such, individual member states are not
permitted to unilaterally forgo their obligations towards another member state.
However, in recent times, concerning developments have emerged in some member
states, including Poland, which are contrary to European values and threaten to
undermine the whole European system.7 is has the potential to create a scenario
whereby the EU institutions are seeking to enforce certain obligations on a member
state whilst, at the same time, other member states are acutely aware of the onus that
sits with them to full certain obligations to that same, potentially non-compliant,
member state. Such matters will become all the more heightened when the rights of
individuals are at stake.
e line of cases involving Celmer demonstrate that both the CJEU and the Irish
courts are struggling to deal with situations where certain European values appear
to be under threat within a member state. is paper will argue that the CJEU, in
trying to balance individual rights while protecting the integrity of the European
legal framework, has established a test which is both dicult for national courts to
apply and inadequately protects an individual’s right to a fair trial. Furthermore, it
will be argued that both the High Court and Supreme Court misapplied the test set
by the CJEU, and set a worrying precedent that surrender to member states which
do not respect the rule of law is acceptable. e structure of the paper is as follows:
Part II sets out the background to the Celmer cases, including the European arrest
warrant framework, and the situation regarding the rule of law in Poland. Part
III then provides an overview of the line of the cases involving Celmer. Part IV
critically analyses the various aspects of the CJEU decision and those of the High
Court and Supreme Court. Finally, Part V sets out subsequent developments that
have taken place since the Supreme Court delivered its judgment on the matter in
November 2019.
II. Background
European Arrest Warrant System
e Council Framework Decision of 13 June 2002 on the European arrest warrant
and the surrender procedures between Member States (the ‘Framework Decision’)
was introduced with the intention of providing a simplied system between
member states for the extradition of persons who have been sentenced for crimes,
6 Consolidated Version of the Treaty on European Union (TEU) [2012] OJ C 326, art 7(3).
7 Michael Homan, ‘[PiS]sing o the Courts: the PiS Party’s Eect on Judicial Independence
in Poland’ (2018) 51 Vab derbilt Journal of Transnational Law 1153; Neža Šubic, ‘Executing a
European Arrest Warrant in the Middle of a Rule of Law Crisis: Case C-216/18 PPU Minister for
Justice and Equality (LM/Celmer)’ (2018) 21(1) Irish Journal of European Law 98.
36 -
or persons suspected of having committed a crime.8 e European arrest warrant
system is based on the principle of mutual recognition,9 and operates on the basis
of a mutual trust that all member states will fully respect the fundamental rights
of the EU.10 e Framework Decision provides that the implementation of the
European arrest warrant system ‘may be suspended only in the event of a serious
and persistent breach’ by a member state of EU values (including the rule of law),
as determined by the EU Council under article 7(2) of the Treaty on European
Union (‘TEU’).11 Relevant also to the analysis is article 1(3) of the Framework
Decision, which provides that the ‘Framework Decision shall not have the eect
of modifying the obligation to respect fundamental rights and fundamental legal
principles as enshrined in Article 6.’
Under article 7(1) TEU, one third of member states, the European Commission, or
the Parliament, may present a reasoned proposal to the Council, which acting by a
majority of four hs of member states, may determine that there is a clear risk of
a serious breach by a member state of the values as set out in article 2. Pursuant to
article 7(2), the Council may, following a proposal by one third of the member states
or by the Commission, determine the existence of a serious and persistent breach
by a member state of article 2 values. is requires unanimity in the Council. e
consequence of this is that under article 7(3), the Council, acting with a majority of
four hs, may suspend treaty rights of the member state in question. Recital 10 of
the Framework Decision is clear that only in the event of a Council determination
under article 7(2) (‘serious and persistent breach’) may the European arrest warrant
mechanism be suspended.
e Rule of Law in Poland
In 2015, PiS won a majority in both houses of parliament in Poland. is success,
along with the victory of PiS presidential candidate Andrzej Duda in the 2015
presidential elections, provided PiS with complete control over the legislative and
executive branches in Poland.12 Within a short space of time, PiS sought to institute
a range of reforms within the courts and the judiciary which raised concerns, both
8 Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant
and the surrender procedures between Member States [2002] OJ L190 (‘Framework Decision’).
9 ibid art 1(3).
10 Valsamis Mitsilegas, ‘e Symbiotic Relationship between Mutual Trust and Fundamental Rights
in Europe’s Area of Criminal Justice’ (2015) 6(4) New Journal of European Criminal Law 457,
466.
11 Framework Decision (n 8) recital 10. See also, recital 12 which provides that the Framework
Decision does not prohibit refusal to surrender where a European arrest warrant has been issued
for the purpose of prosecuting or punishing a person on the grounds of his or her sex, race, religion,
ethnic origin, nationality, political opinions or sexual orientation.
12 Homan (n 7) 1154.
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