The Minister for Justice v Celmer (No. 6)

JurisdictionIreland
CourtHigh Court
JudgeMs. Justice Donnelly
Judgment Date28 November 2018
Neutral Citation[2018] IEHC 687
Date28 November 2018
Docket Number[RECORD NO. 2013 295 EXT] [RECORD NUMBER 2017 291 EXT]

[2018] IEHC 687

THE HIGH COURT

Donnelly J.

[RECORD NO. 2013 295 EXT]

[RECORD NO. 2014 8 EXT]

[RECORD NUMBER 2017 291 EXT]

BETWEEN
THE MINISTER FOR JUSTICE AND EQUALITY
APPLICANT
AND
ARTUR CELMER (NO.6)
RESPONDENT
AND BY ORDER
THE IRISH HUMAN RIGHTS AND EQUALITY COMMISSION
AMICUS CURIAE

European Arrest Warrants – Points of law of exceptional public importance – Right to a fair trial – Respondent seeking certification of points of law of exceptional public importance – Whether there was a real risk of a breach of the essence of the respondent’s right to a fair trial

Facts: The respondent, Mr Celmer, sought a certificate for leave to appeal against the order and decision of the High Court of the 19th November, 2018, directing his surrender on three European Arrest Warrants to such other person as was duly authorised by the Republic of Poland to receive him. The applicant, the Minister for Justice and Equality, opposed the application. The respondent asked the Court to certify the following as points of law of exceptional public importance, which he submitted were desirable in the public interest to be decided at appellate level: (a) Whether a substantial risk of a breach of the respondent’s right to trial before an independent tribunal amounts in itself to a substantial risk of breach of the essence of the respondent’s fair trial rights? (b) Whether the decision of the Court of Justice of the European Union in L.M. adopted the jurisprudence of the High Court of England and Wales on Article 6 of the European Convention on Human Rights such that the test thereby established for refusal of surrender permits an executing judicial authority to order surrender on the basis that a lack of independence on the part of the tribunal may be sufficiently mitigated by other features of a fair trial? (c) Whether evidence of an indirect link between the powers and statements of the Minister for Justice and court rulings, such that the views of the former could influence the latter, must be discounted as an “insufficient” basis to be satisfied of a substantial risk of breach of the respondent’s fair trial rights? (d) Where an executing judicial authority is satisfied that there are systemic and generalised violations of the independence of the judiciary in the requesting Member State, and that those violations will affect the level of court before which the respondent would be tried were he surrendered, what evidential standard is required to enable the executing judicial authority to determine whether there is a substantial risk of a breach of the respondent’s fair trial rights?

Held by Donnelly J that question (b) did not reach the standard required by s. 16(11) of the European Arrest Warrant Act 2003. Donnelly J did not consider that the manner in which question (a) had been phrased reached the kernel of the question to be decided. Donnelly J held that question (d) was not one that truly arose from the decision of the Court because neither the standard of proof nor the burden of proof was put at issue by the respondent. Donnelly J held that no point of law of exceptional public importance arose in respect of question (c).

Donnelly J held that, after hearing further submissions from counsel for the Minister and for the respondent, the following question would be certified by the Court pursuant to s. 16(11) of the 2003 Act: “Is the decision of the Court of Justice of the European Union in L.M. 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?

Question certified.

JUDGMENT of Ms. Justice Donnelly delivered on the 28th day of November, 2018.
Introduction
1

The respondent seeks a certificate for leave to appeal against the order and decision of this Court of the 19th November, 2018, directing his surrender on three European Arrest Warrants to such other person as is duly authorised by the Republic of Poland to receive him. The Minister opposed the application. The Irish Human Rights and Equality Commission (‘the IHREC’) did not make submissions on this application.

2

The relevant statutory provision is s. 16(11) of the European Arrest Warrant Act 2003 (‘the Act of 2003’) (as now substituted by s.10 of the European Arrest Warrant (Application to Third Countries and Amendment) and Extradition (Amendment) Act 2012), which states: ‘

‘An appeal against an order under subsection ( 1) or (2) or a decision not to make such an order may be brought in the [Court of Appeal] if, and only if, the High Court certifies that the order or decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the [Court of Appeal].’

3

The respondent asked this Court to certify the following as points of law of exceptional public importance, which he submits are desirable in the public interest to be decided at appellate level:

a. Whether a substantial risk of a breach of the Respondent's right to trial before an independent tribunal amounts in itself to a substantial risk of breach of the essence of the Respondent's fair trial rights?

b. Whether the decision of the Court of Justice of the European Union in LM adopted the jurisprudence of the High Court of England and Wales on Article 6 of the European Convention on Human Rights such that the test thereby established for refusal of surrender permits an executing judicial authority to order surrender on the basis that a lack of independence on the part of the tribunal may be sufficiently mitigated by other features of a fair trial?

c. Whether evidence of an indirect link between the powers and statements of the Minister for Justice and court rulings, such that the views of the former could influence the latter, must be discounted as an ‘insufficient’ basis to be satisfied of a substantial risk of breach of the Respondent's fair trial rights?

d. Where an executing judicial authority is satisfied that there are systemic and generalised violations of the independence of the judiciary in the requesting Member State, and that those violations will affect the level of court before which the Respondent would be tried were he surrendered, what evidential standard is required to enable the executing judicial authority to determine whether there is a substantial risk of a breach of the Respondent's fair trial rights?

The Law on Applications for a Certificate
4

Although the case concerned whether to grant leave to appeal a decision of the High Court to the Supreme Court under planning legislation, the general approach to be taken is that identified by Clarke J. in Arklow Holidays v. An Bord Pleanala [2007] 4 I.R. 112. The Court has also to bear in mind the remarks of Murray J. ( nem diss) in the Supreme Court in Minister for Justice and Equality v. Tokarski [2012] IESC 61 when he stated:

‘In matters arising under the European Arrest Warrant Act there is just one judicial determination at first instance with no right of appeal, as such, except insofar as it is granted by the same court on the basis of the criteria set out in section 16. In this instance the learned High Court judge has, it would seem, and in my view correctly, taken a broad approach to the interpretation of that section and granted leave to appeal…’

5

It is also useful to set out the relevant portions of the judgment of McMenamin J. in Glancre Teoranta v An Bord Pleanala [2006] IEHC 250 in which he set out the applicable principles:

‘I am satisfied that a consideration of these authorities demonstrates that the following principles are applicable in the consideration of the issues herein.

1. The requirement goes substantially further than that a point of law emerges in or from the case. It must be one of exceptional importance being a clear and significant additional requirement.

2. The jurisdiction to certify such a case must be exercised sparingly.

3. The law in question stands in a state of uncertainty. It is for the common good that such law be clarified so as to enable the courts to administer that law not only in the instant, but in future such cases.

4. …

5. The point of law must arise out of the decision of the High Court and not from discussion or consideration of a point of law during the hearing.

6. The requirements regarding ‘exceptional public importance’ and ‘desirable in the public interest’ are cumulative requirements which although they may overlap, to some extent require separate consideration by the court (Raiu).

7. The appropriate test is not simply whether the point of law transcends the individual facts of the case since such an interpretation would not take into account the use of the word ‘exceptional’.

8. Normal statutory rules of construction apply which mean inter alia that ‘exceptional’ must be given its normal meaning.

9. ‘Uncertainty’ cannot be ‘imputed’ to the law by an applicant simply by raising a question as to the point of law. Rather the authorities appear to indicate that the uncertainty must arise over and above this, for example in the daily operation of the law in question.

10. Some affirmative public benefit from an appeal must be identified. This would suggest a requirement that a point to be certified be such that it is likely to resolve other cases.’

6

A further valuable statement of principle concerning applications for leave to appeal, is that of Finlay Geoghegan J. in Raiu v Refugee Appeals Tribunal...

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3 cases
  • Minister for Justice & Equality v Celmer
    • Ireland
    • Supreme Court
    • 12 November 2019
    ...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......
  • Minister for Justice and Equality v Rydzewski
    • Ireland
    • High Court
    • 20 December 2018
    ...warrant. The issue of the independence of the judiciary was and remains an issue in The Minister for Justice -v- Celmer (No. 6) & anor [2018] IEHC 687. However, that issue concerns the issue of a fair trial. No factual basis giving rise to a concern about any aspect of a fair trial on his r......
  • Minister for Justice and Equality v Celmar
    • Ireland
    • Supreme Court
    • 20 February 2019
    ...trial? 15 In so certifying, the learned trial judge explained, at paragraph 18 of her judgment, ( Minister for Justice v. Celmer (No. 6) [2018] IEHC 687, that the applicant disputed the interpretation of the decision of the CJEU in LM. The learned trial judge recorded that it would seem of ......

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