Wojciech Orlowski v Minister for Justice and Equality

JurisdictionIreland
CourtSupreme Court
JudgeMs. Justice Elizabeth Dunne
Judgment Date23 July 2021
Neutral Citation[2021] IESC 46
Docket NumberS:AP:IE:2021:000018
Between/
Wojciech Orlowski
Appellant
and
Minister for Justice and Equality
Respondent
Between/
Jakub Lyszkiewicz
Appellant
and
Minister for Justice and Equality
Respondent

[2021] IESC 46

Birmingham P.

Dunne J.

Charleton J.

O'Malley J.

Baker J.

S:AP:IE:2021:000018

S:AP:IE:2021:000020

AN CHÚIRT UACHTARACH

THE SUPREME COURT

European arrest warrants – Surrender – Right to a fair trial – Republic of Poland seeking the surrender of the appellants pursuant to a number of European arrest warrants – Whether the systemic deficiencies in the Polish system were such that they, by themselves, amounted to a sufficient breach of the essence of the right to a fair trial, requiring the executing authority to refuse surrender

Facts: The surrender of the appellants, Mr Orlowski and Mr Lyszkiewicz, was sought by the Republic of Poland pursuant to a number of European arrest warrants (EAWs). These two cases raised the same issues and were dealt with by Binchy J in the High Court together, with judgments delivered in each case on the same day. Both the appellants were given leave to appeal to the Supreme Court on the same grounds. The core contention of the appellants was that, since the decision of Celmer v Minister for Justice and Equality [2019] IESC 80, the situation in Poland had changed. The Act on the System of Common Courts (the New Laws) was passed on the 20th December 2019 and adopted by the Polish legislature on the 23rd January 2020, and came into force in Poland on the 24th February 2020, which the appellants said raised the possibility that the courts in Poland which would consider their cases may not be constituted in accordance with law in the manner referred to by the Court of Justice in A.B. and Others (Appointment of judges to the Supreme Court – Actions) (Case C-824/18) ECLI:EU:C:2021:153. The appellants said that no mechanism exists in Poland to challenge this illegality. The respondent, the Minister for Justice and Equality, argued that the appellants were effectively asking the Court to dispense of the second stage of the “LM” test (Minister for Justice and Equality (Deficiencies in the system of justice) Case C-216/18 PPU, ECLI:EU:C:2018:586). The respondent said that there was no authority, domestic or international, to suggest that a party can complain only of a theoretical breach of their rights; a party must demonstrate some nexus between the breach complained of and their individual case, and without such evidence, the appellants must fail.

Held by Dunne J that the question arose as to whether the systemic deficiencies in the Polish system were such that they, by themselves, amounted to a sufficient breach of the essence of the right to a fair trial, requiring the executing authority, Ireland, to refuse surrender. The answer to that question was not, in the view of the Court, acte clair and in the circumstances, the Court proposed requesting a ruling from the CJEU as follows: (1) Is it appropriate to apply the test set out in LM and affirmed in Joined Cases C-354/20 PPU and C-412/20 PPU, L&P, ECLI:EU:C:2020:1033 (L and P) where there is a real risk that the appellants will stand trial before courts which are not established by law? (2) Is it appropriate to apply the test set out in LM and affirmed in L and P where a person seeking to challenge a request under an EAW cannot by reason of the fact that it is not possible at that point in time to establish the composition of the courts before which they will be tried by reason of the manner in which cases are randomly allocated? (3) Does the absence of an effective remedy to challenge the validity of the appointment of judges in Poland, in circumstances where it is apparent that the appellants cannot at this point in time establish that the courts before which they will be tried will be composed of judges not validly appointed, amount to a breach of the essence of the right to a fair trial requiring the executing state to refuse the surrender of the appellants?

Dunne J invited the parties to make submissions on the final version of the questions to be submitted to the CJEU by the 29th July 2021.

Referred to the CJEU.

Judgment of Ms. Justice Elizabeth Dunne delivered on the 23 rd day of July, 2021

1

The surrender of each of the appellants is sought by the Republic of Poland (“Poland”) pursuant to a number of European Arrest Warrants (“EAWs”). These two cases raise the same issues and were dealt with by Binchy J. in the High Court together, with judgments delivered in each case on the same day. Both the appellants were given leave to appeal to this Court on the same grounds. The first in time to be listed before the Court was Orlowski. When the second case was listed, it was indicated that the second appellant was satisfied to rely on the written submissions furnished by Counsel on behalf of Mr. Orlowski as they comprehensively dealt with the same issues that arose in his case and further that he did not intend to furnish oral submissions on behalf of his client but would be available in court to assist the Court, if necessary. For that reason, reference will be made to the submissions on behalf of the appellants as if they were joint submissions, unless the context otherwise requires.

2

The judgment of this Court in Celmer v. Minister for Justice and Equality [2019] IESC 80 engaged with the challenges faced by Member States when an objection is raised pursuant to s. 37 of the European Arrest Warrant Act 2003 that ordering the surrender of a respondent who is the subject of an EAW would potentially lead to a violation of their rights under the European Convention of Human Rights (“ECHR”) or the Charter of Fundamental Rights of the European Union (“the Charter”). In Celmer, following a reference to the Court of Justice, it was decided that Member State courts were required to undertake a two-step analysis when a respondent seeks to resist surrender on the suggestion that there is a risk of violation of their rights pursuant to EU law: firstly, the court should identify whether generalised and systemic deficiencies exist in the requesting Member State that give rise to a breach of rights under the ECHR or the Charter, and secondly, the Court must identify a real risk on substantial grounds that the essence of the fundamental right will be breached. (see Minister for Justice and Equality (Deficiencies in the system of justice) Case C-216/18 PPU, ECLI:EU:C:2018:586, “ LM” herein, as Celmer was identified in the CJEU). This test was applied by this Court in Celmer and more recently, affirmed by the CJEU in Joined Cases C-354/20 PPU and C-412/20 PPU, L&P, ECLI:EU:C:2020:1033, “ L and P” herein).

3

The core contention of the appellants in this case is that, since the decision of Celmer, the situation in Poland has changed. The Act on the System of Common Courts (“the New Laws”) was passed on the 20 th December 2019 and adopted by the Polish legislature on the 23 rd January 2020, and came into force in Poland on the 24 th February 2020, which the appellants say raises the possibility that the courts in Poland which would consider their cases may not be constituted in accordance with law in the manner recently referred to by the Court of Justice in A.B. and Others. (Appointment of judges to the Supreme Court – Actions) (Case C-824/18) ECLI:EU:C:2021:153. Moreover, the appellants say that no mechanism exists in Poland to challenge this illegality. The respondent argues that the appellants are effectively asking the Court to dispense of the second stage of the LM test. The respondent says that there is no authority, domestic or international, to suggest that a party can complain only of a theoretical breach of their rights. A party must demonstrate some nexus between the breach complained of and their individual case, and without such evidence, the appellants must fail.

Proceedings in the High Court
4

The judgments of Binchy J. in the High Court ( Minister for Justice and Equality v. Orlowski [2021] IEHC 109; Minister for Justice and Equality v. Lyszkiewicz [2021] IEHC 108) succinctly describe the factual circumstances giving rise to this appeal. Mr. Orlowski and Mr. Lyszkiewicz are the subject of a number of EAWs which seek their extradition to Poland. The first-named appellant is the subject of four EAWs, two of which were issued by regional court of Lublin, and the remaining two issued by the District Court in Zdzislaw Lukasiewicz and Zamość respectively. Three of these EAWs seek his surrender to face trial for a number of specific offences and one seeks his surrender so that he can be imprisoned for convictions already handed down by the Polish courts. The second-named appellant is the subject of an EAW issued by the regional court of Rzeszów, and it relates to five offences.

5

These cases, as previously indicated, travelled together in the High Court. The EAWs were challenged on a number of grounds in both cases, and while separate judgments were given for each of them, for the purposes of this appeal, they are based on the same core issue, and were decided in the same way. The focus of this appeal relates to the challenge pursued by both appellants at hearing, summarised in both judgments under the sub-heading “ Court “Established by Law”” in the same terms. The judgments on this issue are in almost identical terms.

6

In the High Court, the appellants argued that the new laws passed in Poland have given rise to concerns that judges have been or may be appointed otherwise than in accordance with law and further, that the validity of these appointments cannot be challenged. They submitted that this position gives rise to a breach of the appellants' right to a fair trial and their right to an effective remedy under Arts. 6 and 13 of the ECHR, and Art. 47 of the Charter. The particular provision giving rise to these concerns is Article 42a of the new laws, which provides:

“Within...

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4 cases
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