The High Court certified a question for appeal about whether systemic and generalised deficiencies in judicial independence can, on their own, establish a real risk of breach of the essence of a requested person’s fair-trial rights in a European Arrest Warrant case.
The ruling arose from Artur Celmer’s application for a certificate to appeal the High Court’s 19 November 2018 order directing his surrender to Poland under three European Arrest Warrants. The Minister for Justice and Equality opposed the application. The Irish Human Rights and Equality Commission appeared as amicus curiae but made no submissions on the certificate application.
Under section 16(11) of the European Arrest Warrant Act 2003, an appeal could proceed only if the High Court certified that the decision involved a point of law of exceptional public importance and that an appeal was desirable in the public interest.
Celmer proposed four questions, including whether a risk to the right to trial before an independent tribunal could breach the essence of fair-trial rights, and whether evidence of an indirect link between government statements and court rulings was insufficient. The court rejected the proposed questions about the evidential standard and the alleged indirect link. It said the burden and standard of proof had not been put in issue by Celmer, and that the indirect-link argument selected one part of a broader assessment of his circumstances and the evidence. The court had found that the evidence did not establish a specific risk of an unfair trial for him beyond general concerns about judicial independence.
The court considered that an appeal was desirable to resolve the interpretation of the Court of Justice of the European Union’s decision in L.M. It initially framed a question about whether systemic deficiencies affecting the level of court that would try a surrendered person were sufficient on their own to establish substantial grounds for a real risk to the essence of fair-trial rights.
After further submissions from counsel for both sides, the court certified a revised question. It asks whether those systemic and generalised deficiencies, “on their own and in the absence of evidence of deficiencies in other safeguards for a fair trial”, meet that threshold.
The judgment certified that question for appeal. It did not decide the appeal or alter the earlier surrender order.