The Minister for Justice and Equality -v- Celmer No.5, [2018] IEHC 639 (2018)

Docket Number:2013 295 EXT: 2014 8 EXT: 2017 291 EXT
Party Name:The Minister for Justice and Equality, Celmer No.5
 
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THE HIGH COURT[RECORD NO. 2013 295 EXT]

[RECORD NO. 2014 8 EXT]

[RECORD NUMBER 2017 291 EXT]

BETWEEN

THE MINISTER FOR JUSTICE AND EQUALITYAPPLICANTAND

ARTUR CELMER (No.5)RESPONDENTAND BY ORDER

THE IRISH HUMAN RIGHTS AND EQUALITY COMMISSIONAMICUS CURIAE

JUDGMENT of Ms. Justice Donnelly delivered on the 19th day of November, 2018.

  1. In these proceedings, the Court is required to make a determination as to whether the respondent’s right to a fair trial under the Constitution, under the European Convention on Human Rights (“ECHR”) and under the EU Charter on Fundamental Rights (“the Charter”), prohibits his surrender to the Republic of Poland (“Poland”) for prosecution in light of the recent changes in legislation concerning the judiciary in that Member State. This Court must make a factual determination on the information before it, in accordance with the principles set out by the Court of Justice of the European Union (“CJEU”) in Reference for a preliminary ruling from the High Court (Ireland) made on 27 March 2018 — Minister for Justice and Equality v L.M. (Case C-216/18) and in accordance with the provisions of the European Arrest Warrant Act, 2003 as amended (“the Act of 2003”).

  2. Following the decision of the CJEU in L.M., this Court requested further information from the issuing judicial authorities in Poland (see Minister of Justice and Equality v Celmer (No.4) [2018] IEHC 484). Subsequent to that judgment, the respondent also submitted his own expert report from three lawyers in Poland. As a result of that further information, and arising from the omission by one of the issuing judicial authorities to send over a translated document of its response, this Court adjourned the matter and sought further information.

  3. The request for additional information made pursuant to Article 15 of the 2002 Framework Decision on the 13th June, 2002 (“the 2002 Framework Decision”) and s. 20 of the Act of 2003 referred to the expert report furnished on behalf of the respondent. Each issuing judicial authority was asked that they would comment specifically on the following issues:

    (a) The general situation of the rule of law in Poland as set out in the report;

    (b) The removal of presidents and vice – presidents of the Ordinary Courts in general;

    (c) The part of the report dealing specifically with the removal of the presidents and vice – presidents of the Regional Courts in Wloclawek, Poznan and Warsaw, which are the relevant issuing judicial authorities;

    (d) The nexus between the removal of the court’s presidents and the remarks of the Deputy Minister for Justice relating to the respondent;

    (e) How the removal of the court presidents might have any effect on the trial of Mr. Celmer if he was to be surrendered.

  4. On the 2nd October, 2018, this Court made an order joining the Irish Human Rights and Equality Commission (“the IHREC”) as an amicus curiae. Although the IHREC had offered assistance in a number of areas, the Court sought their specific assistance on the assessment of evidence.

    The remaining legal

    issues

  5. The initial judgment of this Court had finalised all issues arising in the application for surrender pursuant to s. 16 of the Act of 2003 apart from those arising from the Polish legislative changes concerning the courts. The CJEU ruling in L.M. answered the questions referred by this Court. It is now for the Court to adjudicate on his surrender in light of the answers to those questions and having regard to the evidence presented and submissions made subsequent to that decision.

    The concerns of the parties

  6. At the hearing on 31st October, 2018, a legal issue arose as to the applicable threshold in determining the breach of fair trial rights that would prohibit surrender. This test is to be distinguished from the standard of proof. This test refers to the degree or extent of the denial of a fair trial that must be established in accordance with the standard of proof before surrender will be prohibited. It is important, therefore, to distinguish between that test and the concept of standard of proof itself. The IHREC raised issues around the standard of proof and the burden of proof.

    The

    standard of proof

  7. As regards the standard of proof, the IHREC made detailed submissions on the relevant standard. This was not put in issue by either the respondent or the minister. This Court considers that the appropriate standard in extradition cases, when dealing with the prospective risk of a breach of rights contained in the Convention or Constitution or Charter, is long established. That standard was articulated by the Supreme Court in Minister for Justice, Equality and Law Reform v Rettinger [2010] IESC 45. Although that case concerned the prohibition of surrender based on the real risk of inhuman and degrading treatment (Article 3 ECHR), the standard of proof has been applied in other cases where a breach of a Convention or Constitutional right is claimed. The standard of proof is one of real risk based on substantial grounds that a right will be violated. A requirement to prove the real risk on substantial grounds is the standard set in the jurisprudence of the European Court of Human Rights.

  8. Section 37 of the Act of 2003, which prohibits surrender where surrender would be incompatible with the ECHR or the Constitution, also contains a specific subsection prohibiting surrender where there are reasonable grounds of believing that the person would, inter alia, be tortured or subjected to other inhuman or degrading treatment. In Rettinger, Fennelly J. was of the view that there was no distinction to be made between substantial or reasonable grounds. As the Supreme Court (McKechnie J.) observed in Attorney General v. Davis [2018] IESC 27 (para 86): -

    “Some authorities say that “substantial grounds” must be established such as would give rise to a real risk; others say “reasonable grounds”. Given the difficulty of obtaining credible evidence which is current at the time of hearing, I would prefer the latter, though in substance there may be no difference between the two.”

    This Court will proceed on the basis that there is no distinction between the two words ‘reasonable’ or ‘substantial’.

  9. The Court is grateful to the IHREC for their detailed submissions, but the Court does not consider, in light of the arguments submitted by the parties in this case, the issues raised and the evidence before the Court, that it is necessary to address any further the possibility that the Rettinger standard of proof may, or does, vary according to the circumstances of the particular case.

    The burden of

    proof

  10. The IHREC made submissions concerning the burden of proof. This was not placed in issue between the minister and respondent. Indeed, in this case the respondent placed evidence before the Court as to the situation in Poland and as to his personal situation. It is not necessary therefore to deal with this aspect. It suffices to say that in Rettinger, the Supreme Court confirmed that a burden rests upon a requested person to adduce evidence capable of proving the substantial grounds that the person would be exposed to treatment contrary to Article 3 of the Convention. It has been repeatedly accepted by the courts in this jurisdiction that this burden applies to a claimed breach of any Constitutional or Conventional right. Moreover, in L.M. the CJEU required the executing judicial authority to make its assessment as to a breach of fair trial “in the light of the specific concerns expressed by the individual concerned and any information provided by him.”

    The test of flagrant denial

  11. In the course of the hearing an issue arose as to the correct test or threshold in establishing the breach of fair trial that would prohibit surrender. This arose because the CJEU in L.M. referred in their answer to the questions posed by this Court to breach “of the essence of his fundamental right to a fair trial.” A significant part of the oral hearing was taken up by the whether this was setting a standard which was different to that set down in the jurisprudence of the European Court of Human Rights. To a certain extent that discussion may not have been entirely necessary, as the respondent’s main submission was that in light of the particular concern being the independence of the judiciary, the essence of his right had been violated. The respondent nonetheless suggested at the oral hearing that there may be a difference in the threshold that has to be reached. In these circumstances, the Court will address the correct test applicable in this case.

  12. Of note is that in his supplemental submissions filed subsequent to the decision in L.M., the respondent claimed that it was open to the executing court to conclude where the trial court is not independent, that a real risk had been made out that the right to a fair trial would be breached in a “flagrant way”. The respondent submitted that there was no basis for holding that the CJEU intended to limit the possibility of a finding of a real risk of a flagrant breach of fair trial rights to those who are particularly likely to be the subject of hostility from the executive branch.

  13. The IHREC referred in their written submissions, to the decision of the ECtHR in Othman (Abu Qatada) v United Kingdom (2012) 55 EHRR 1. They relied upon the following paragraphs::

    “258. It is established in the Court’s case-law that an issue might exceptionally be raised under Article 6 by an expulsion or extradition decision in circumstances where the fugitive had suffered or risked suffering a flagrant denial of justice in the requesting country. That principle was first set out in Soering v. the United Kingdom, 7 July 1989, § 113, Series A no. 161 and has been subsequently confirmed by the Court in a number of cases (see, inter alia, Mamatkulov and Askarov, cited above, §§ 90 and 91; Al-Saadoon and Mufdhi v. the United Kingdom, no. 61498/08, § 149, ECHR 2010 ...).

  14. In the Court’s case-law, the term...

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