The Supreme Court has decided to seek a ruling from the Court of Justice of the European Union (CJEU) on legal questions arising from the proposed surrender of two men to Poland under European Arrest Warrants (EAWs). It has not yet decided whether either man should be surrendered.
The appeals concern whether each man could face trial before a Polish court not established by law, and whether a person sought for surrender can challenge the appointment of judges when the trial court’s members are not yet known. The Court said it was not clear whether the two-step test in earlier CJEU rulings, requiring an assessment of systemic deficiencies and an individual risk to the person concerned, applies to these issues.
The men argued that changes to Polish law prevent challenges to the legality of judicial appointments. They relied on expert evidence and reports raising concerns about the effects of the changes. The Irish High Court had accepted that a challenge to a judge’s appointment would not be heard in Poland, but held that the men had not shown that judges assigned to their cases were appointed contrary to Polish law. It ordered their surrender.
The Supreme Court noted that court cases in Poland are allocated randomly, so the men cannot currently identify which judges would hear their cases. It also said that, even if they could establish that an assigned judge had not been validly appointed, the new Polish laws appeared to leave them without an effective remedy to challenge the court’s composition.
The Court described the rule-of-law concerns as more troubling following the new laws. It framed three questions for the CJEU: whether the earlier two-step test applies where there is a real risk of trial before a court not established by law; whether it applies when the trial court’s composition cannot yet be identified; and whether the lack of an effective remedy in these circumstances breaches the essence of the right to a fair trial so as to require refusal of surrender.
The Supreme Court invited the parties to comment on the final wording of the questions by 29 July 2021. It said the final reference would be settled by the Court after considering any submissions and then sent to the CJEU. The judgment does not record a final decision on surrender.