The Minister for Justice and Equality v Celmer

• Jurisdiction: Ireland
• Judge: Ms. Justice Donnelly
• Judgment Date: 23 March 2018
• Neutral Citation: [2018] IEHC 154
• Date: 23 March 2018
• Court: High Court
• Docket Number: [RECORD NO. 2013 295 EXT] [RECORD NO. 2014 8 EXT] [RECORD NO. 2017 291 EXT]

BETWEEN

MINISTER FOR JUSTICE AND EQUALITY

APPLICANT

AND

ARTUR CELMER

RESPONDENT

[2018] IEHC 154

[RECORD NO. 2013 295 EXT]

[RECORD NO. 2014 8 EXT]

[RECORD NO. 2017 291 EXT]

THE HIGH COURT

Extradition – The European Arrest Warrant (“EAW”) Act 2003 – Reference to the Court of Justice of the European Union (‘CJEU’) – Amicus curiae – Art. 267 of the Treaty on the Functioning of the European Union (‘TFEU’) – Art. 96 of the Rules of Procedure of the CJEU

Facts: The case originally related to the surrender of the respondent to the requesting state on foot of issuance of the European Arrest Warrants. The Court had referred the matter to the Court of Justice of the European Union (‘CJEU’) and also adjourned the matter so that the parties could frame the questions for reference to the CJEU. In the present proceedings, by way of the notice of motion, Fair Trials Europe sought to be joined as amicus curiae to the referral to the CJEU. The Fair Trials Europe proposed to draw upon its expertise to provide assistance to the Court in determining the questions referred to the CJEU.

Ms. Justice Donnelly dismissed the application of the Fair Trials Europe. The Court held that art.96 of the Rules of Procedure of the Court of Justice of the European Union only permitted the parties to be involved before the CJEU if they were involved in the proceedings before the Court of first instance; therefore, it would be inappropriate to join the Fair Trials Europe as the amicus curiae. The Court opined that the proposed amicus curiae would not bring a perspective to the issue of the questions to be referred as the Court had determined the issues raised before it and both the parties were represented by a senior counsel and solicitor and were given an opportunity of commenting on the proposed questions for the CJEU.

JUDGMENT of Ms. Justice Donnelly delivered on the 23rd day of March, 2018

Introduction

1 This judgment concerns the application by Fair Trials Europe to be appointed amicus curiae to these proceedings which concern the application for surrender to the Republic of Poland of the respondent on foot of three European Arrest Warrants. By Notice of Motion, they also seek to be joined as amicus curiae to the referral to the Court of Justice of the European Union (‘CJEU’) under Article 267 of the Treaty on the Functioning of the European Union (‘TFEU’) and to participate in the formulation of the substantive reference sought by the respondent within these proceedings.

2 In its judgment of 12th March 2018, this Court concluded that it was necessary to refer questions to the CJEU in respect of the issues raised. The case was adjourned to 16th March 2018 for submissions regarding the questions proposed. It was stated in the judgment, and again by the Court and the parties on 16th March 2018, that this was a case where the Court would request the CJEU to adopt the urgent procedure. The respondent is in custody.

3 On 16th March 2018, the respondent produced a draft referral for the Court's consideration, and the minister produced alterative questions for the Court's consideration. It was agreed that the matter would be adjourned to 21st March 2018 for the purpose of each party making final submissions on the draft and the questions. Such an approach was designed to assist in expediting the referral.

4 On 20th March 2018, subsequent to a verbal notification to the Court Registrar of the possibility of an application being made, at 18:21 an email was forwarded to the Court Registrar and to the minister enclosing the notice of motion and the affidavit sworn by Ralph Bunche who is the regional director of Fair Trials Europe based in Brussels.

5 During the course of the hearing in relation to the details of the referral to the CJEU, counsel for the proposed amicus curiae moved his application. The minister opposed the application and the respondent stated he was not adopting any position in respect of it, but counsel later made an observation on the submissions of the minister.

The basis for the application

6 The affidavit of Mr. Bunche states that Fair Trials Europe is a non-governmental organisation based in London, Brussels, and Washington D.C.. The organisation works to pursue matters of fair trials according to internationally recognised standards of justice. Fair Trials Europe is a registered public foundation in Belgium. It pursues its mission by helping people to understand and exercise their fair trial rights; by addressing the root causes of injustice through its legal and policy work; and through targeted training and network activities to equip lawyers to defend their clients' fair trial rights. The affidavit sets out Fair Trial's capacity and expertise as a prospective amicus curiae. It appears that they have long advocated for improved protection of human rights in the context of cross-border judicial co-operation systems such as the European Arrest Warrant (‘EAW’). Fair Trials has contributed to the development of reform proposals, provided training for lawyers, prosecutors and judges working on cross-border cases, and provided a forum for the exchange of significant judicial decisions and judicial co-operation between EU Member States, contributed expertise to national court cases and extradition in the United Kingdom, Sweden, the Czech Republic and Belgium, and recently served as an amicus curiae on questions related to the EAW before the European Court of Human Rights in a case of Prisacaru v. Belgium and Romania (case no. 8339/15).

7 Fair Trials have been involved over the past two years in a major project monitoring the situation of persons surrendered between EU Member States. This project focuses on post-surrender treatment in a number of countries in the EU and includes an assessment of the manner in which Member State courts are applying the recent case law of the CJEU in particular as it relates to risk assessments to be made by executing courts on the fundamental rights implications of surrenders, pursuant to the CJEU's judgment in the joined cases of Aranyosi and Caldararu (Joined Cases C-404/15 and C-659/15) [2016] E.C.L.I. 198.

8 Fair Trials proposes to draw upon its expertise to provide assistance to the Court in determining the questions to be referred based on:

(i) the principle of mutual recognition in EU Law and in particular the EAW;

(ii) EU law and ECHR standards in related to extradition, the right to a fair trial, judicial independence and...