The Minister for Justice and Equality -v- Celmer, [2018] IEHC 153 (2018)

Docket Number:2013 295 EXT; 2014 8 EXT; 2017 291 EXT
Party Name:The Minister for Justice and Equality, Celmer

THE HIGH COURTRecord No: 2013 EXT 295

2014 EXT 8

2017 EXT 291




Request for Preliminary Ruling Pursuant to Article 267 TFEU dated the 23rd day of March, 2018

The following is the substantive text of the Request for Preliminary Ruling pursuant to Article 267 TFEU made by the High Court (Donnelly J) on 12th March, 2018:

SUBJECT MATTER OF THE DISPUTE1. The surrender of the respondent is sought by the Republic of Poland (“Poland”) pursuant to three European Arrest Warrants (“EAW”). The particulars of the European Arrest Warrants are as follows:

o An EAW dated 4th June, 2012 in proceedings 2013/295 EXT (the first EAW) issued for the purpose of prosecuting him for two offences. Both offences are certified by the issuing State as falling within Article 2.2 of the Framework Decision. The offences have been categorised 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 offences”.

o An EAW dated 1st February, 2012 in proceedings 2014/8 EXT (the second EAW) issued for the purpose of prosecuting him for two offences. The EAW is accompanied by additional information dated the 24/2/2017. Both offences are certified by the Issuing State as falling within Article 2.2 of the Framework Decision. These offences have been categorised as “illicit trafficking in narcotic drugs and psychotropic substances”.

o An EAW dated 26th September 2013 in proceedings 2017/291 EXT (the third EAW) issued for the purpose of prosecuting him for one offence. This offence is certified by the Issuing State as falling within Article 2.2 of the Framework Decision. The offence has been categorised as “illicit production, processing, smuggling of intoxicants, precursors, surrogates or psychotropic substances or trafficking therein”.

  1. The respondent objected to his surrender on the basis that he would be subject to a breach of his Article 3 European Convention on Human Rights (“ECHR”) rights because of prison conditions in Poland, and on the basis of his Article 8 ECHR rights. He also required the minister to prove compliance with the European Arrest Warrant Act 2003. The referring Court (the executing judicial authority) has rejected these objections by decision of 12th March 2018. The respondent also objected to his surrender on the basis that it would expose him to a real risk of a flagrant denial of justice in contravention of Article 6 of the European Convention on Human Rights. It is this objection that grounds the within request for a preliminary ruling, which is required to enable the referring Court to deliver final judgment.

  2. The respondent’s contention is that surrender would contravene Article 6 ECHR on the grounds that recent legislative changes and proposed changes in Poland create a real risk of a flagrant denial of justice. The principal submission on behalf of the respondent is that these changes fundamentally undermine the basis of mutual trust between the issuing and executing judicial authorities such that the operation of the EAW system is called into question.

  3. In support of that objection, the respondent relied particularly upon a document of the European Commission entitled “Reasoned proposal in accordance with Article 7(1) of the Treaty on European Union regarding the rule of law in Poland” (“the Reasoned Proposal”), dated 20th December, 2017, and the documents therein referred to, in particular, the Opinions of the European Commission for Democracy through Law (“the Venice Commission”), as evidence of the legislative changes in Poland and their effect on the judicial system. The veracity of the contents of the Reasoned Proposal, and the Opinions of the Venice Commission, as regards the legislative changes in Poland, was not in question. The issue was the effect those changes had on the risk of the respondent facing an unfair trial in the issuing state should he be surrendered.

    The European Commission’s Reasoned Proposal on Article 7 TEU

  4. On 20th December 2017, the European Commission issued a Reasoned Proposal under Article 7(1) TEU to the European Council requesting it determine that there is a clear risk of a serious breach by a Poland of the values referred to in Article 2 TEU and to address appropriate recommendations to Poland in this regard.

  5. Prior to issuing its Reasoned Proposal, the European Commission made extensive use of the possibilities provided by the rule of law framework for constructive dialogue with the Polish authorities. The European Commission had issued a rule of law opinion, and four rule of law recommendations (the final one was issued on the same day as the Reasoned Proposal). The European Commission exchanged more than 25 letters with the Polish authorities on the matter. The European Commission has stated there was little engagement by the Polish authorities with the substantive recommendations made by the European Commission.

  6. The decision by the European Commission to send a reasoned proposal to the European Council under Article 7(1), in respect of Poland, is the first time that this has occurred in respect of any Member State. The nature of, and reasoning behind, the four rule of law recommendations are set out in the Reasoned Proposal. It is a comprehensive and lengthy document and it is not feasible to itemise the full contents in this request for a preliminary ruling. It records the history of the Commission’s involvement with developments relating to the rule of law in Poland since November 2015. The Reasoned Proposal also sets out in considerable detail the background to, and history of, the legislative changes.

  7. It should be noted that the Venice Commission, an advisory body of the Council of Europe, had also provided Opinions in respect of the situation in Poland, prior to the issuing of the Reasoned Proposal. Their findings are recorded in the Reasoned Proposal.

  8. The European Commission recorded the serious concerns expressed, in the period leading up to the issuing of the Proposal, by the following bodies: the United Nations Human Rights Committee, the European Council, the European Parliament, the European Network of Councils for the Judiciary; and at a national level, the Polish Constitutional and Supreme Courts, the Ombudsman, the National Council for the Judiciary and associations of judges and lawyers.

    The contents of the Reasoned Proposal

  9. In its Reasoned Proposal, the European Commission dealt with two areas of particular concern; the lack of an independent and legitimate constitutional review, and the threats to the independence of the ordinary judiciary.

  10. In relation to the first area, the European Commission underlined that where a constitutional justice system has been established, its effectiveness is a key component of the rule of law. The Commission drew particular attention to the composition of the Constitutional Tribunal where lawfully nominated judges have not been allowed take up their function, but those judges nominated without a valid legal basis had been admitted to take up their function by the acting president of the Tribunal. The Polish authorities have still not implemented fully the judgments of the Constitutional Tribunal of 3rd and 9th December, 2015 which had sought to remedy this state of affairs. With respect to publication of judgments, the European Commission noted that certain Supreme Court judgments had not been published by the Government and commented that such a “refusal to publish the judgment denies the automatic legal and operational effect of a binding and final judgment, and breaches the rule of law, principles of legality and separation of powers.”

  11. The European Commission also pointed to the appointment of the President of the Constitutional Tribunal and the subsequent developments on that Tribunal. The law on the Supreme Court lowers the general retirement age of Supreme Court judges from 70 to 65. It is stated that such compulsory retirement of a significant number of the current Supreme Court judges allows for a far-reaching and immediate recomposition of the Supreme Court. In the view of the European Commission, “[t]hese developments have de facto led to a complete recomposition of the Constitutional Tribunal outside the normal constitutional process for the...

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