The High Court has asked the Court of Justice of the European Union to clarify how concerns about Poland’s judicial system should affect the surrender of a man sought for prosecution there. The reference leaves the High Court’s final decision on surrender unresolved.
The request, dated 23 March 2018, follows a High Court decision on 12 March in proceedings brought by the Minister for Justice and Equality against Artur Celmer. Poland seeks his surrender under three European Arrest Warrants issued between 2012 and 2013, covering five offences connected with alleged drug offences and participation in an organised criminal group.
The court said it had rejected objections based on prison conditions, the respondent’s Article 8 rights and compliance with the European Arrest Warrant Act. It referred his separate objection that surrender would expose him to a real risk of a flagrant denial of justice, contrary to Article 6 of the European Convention on Human Rights.
In reaching its assessment of the wider situation, the High Court accepted information from the European Commission and the Venice Commission as specific, updated, objective and reliable. It concluded that legislative changes had cumulatively damaged the rule of law in Poland and that the common value of the rule of law had been breached. The court identified concerns including changes to judicial appointments and retirement, the role of the justice minister in prosecution and discipline, and the integrity of the Constitutional Tribunal.
The High Court determined that there was a real risk of arbitrariness in the respondent’s trial because, in its view, unchecked powers were inconsistent with a democratic state governed by the rule of law. It described the systemic breaches as fundamental defects in the justice system. These are the referring court’s findings and preliminary views; the request did not itself decide whether the man should be surrendered.
The reference asks whether, in those circumstances, the executing court must still assess the risk to the individual in a specific and precise way. If that individual assessment is required, it also asks whether the High Court must seek further information or fair-trial guarantees from the Polish judicial authority, and what guarantees could be sufficient given the systemic concerns.
The High Court sought the urgent preliminary ruling procedure, citing the respondent’s custody since 5 May 2017 solely in connection with the warrant proceedings and the effect the answers could have on his legal status. The document says the decision on whether to use that procedure rests with the designated chamber of the Court of Justice. The High Court’s final judgment on surrender remained to follow the EU court’s response.