EU Court of Justice called on to rule on issues relating to the Polish judicial system
The Supreme Court wants the Court of Justice of the European Union (CJEU), in the light of “even more disturbing” changes concerning the rule of law and the appointment of judges in Poland, to decide the legal questions concerning the question of whether Ireland should hand over two men to Poland.
The five-judge tribunal said on Friday that the question must arise whether the “systemic deficiencies” of the Polish system are such as to constitute, in themselves, a sufficient violation of the essence of the right to a fair trial forcing Ireland to refuse surrender.
The changes in Poland since a previous CJEU decision, the LM / Celmer decision, are “even more disturbing and serious” and it “now appears that there are significant issues regarding the validity of the process for appointing officials. judges in Poland, ”he said.
It is “impossible” for the two men to identify the judges before whom they should be tried due to the way cases are “random”. Even if they could identify the judges and establish that the judges were not validly appointed, and therefore were not part of a jurisdiction established by law, there is no possibility, under the new laws, to challenge the composition of the court responsible for trying them.
The court said it had considered whether the systemic shortcomings violated the essence of the right to a fair trial had not already been decided by previous CJEU rulings.
He noted that several bodies, including the Polish Supreme Court and the Polish Commissioner for Human Rights, had expressed serious concerns about the new laws.
The changes brought about by the new laws are “far-reaching and worrying”, especially in light of the loopholes in the Polish system previously identified in cases such as LM / Celmer, he said.
He wants a decision from the CJEU on whether to apply the legal test, set out in the LM / Celmer decision, and confirmed in another decision, Land P, “where there is a real risk that the appellants will be tried.” before courts not established by law ”.
She wants the CJEU to decide whether it is appropriate to apply this test when a person seeking to challenge a surrender request under a European arrest warrant (EAW) cannot because he is not not possible, at that time, to establish the composition of the courts before which they would be tried because of the random distribution of cases.
The CJEU is also invited to decide whether the lack of an effective remedy to challenge the validity of the appointment of judges in Poland, in circumstances where it appears that the two men cannot, at this stage, establish that the courts before which they would be tried would be composed of validly appointed judges, would violate the essence of the right to a fair trial, obliging the executing State to refuse the applicants’ surrender.
A central concern is that Article 26 of the new laws in Poland deprives men of the right to challenge the validity of the appointment of a judge in Poland.
The judgment was rendered by a tribunal composed of Judge George Birmingham, Judge Elizabeth Dunne, Judge Peter Charleton, Judge Iseult O’Malley and Judge Marie Baker. The exact wording of the reference will be decided later.
It came after the Supreme Court agreed to hear appeals from the men, both covered by a number of European arrest warrants issued by Poland, against the High Court orders requesting their surrender.
The main claim of the men is that the situation has changed in Poland since the LM / Celmer decision of 2019, issued after a referral from the Supreme Court to the CJEU, setting out a two-step analysis that EU member states must undertake. when a defendant seeks to oppose the surrender. due to a risk of violation of their rights under EU law.
This analysis requires a court (1) to identify whether there are generalized and systemic deficiencies in the requesting Member State which give rise to a violation of the rights guaranteed by the European Charter and the European Convention on Human Rights and (2) identifies a real risk the essence of the fundamental right would be violated.
The test was confirmed last year by the CJEU in two joined cases known as the LandP case
In their appeals, the two men argued that since LM / Celmer the situation in Poland has changed. They said new laws that entered into force in Poland in February 2020 raised the possibility that Polish courts hearing their cases might not be constituted in accordance with the relevant law set out in a European Court ruling issued earlier this year. year. No mechanism exists in Poland to challenge this illegality, they said.
In opposing their appeals, the Minister of Justice argued that the men could not complain about a “theoretical” violation of their rights.