The Supreme Court has directed the surrender of Wojciech Orlowski and Jakub Lyszkiewicz to Poland under European arrest warrants, finding that the evidence did not establish a specific risk to either man’s right to a fair trial.
In a judgment delivered on 4 August 2022, Ms Justice Dunne said the appellants could not identify the judges who would hear their cases before surrender because cases are allocated randomly. The Court acknowledged concerns about systemic deficiencies in Poland’s judicial appointment system, but said the possibility that an assigned judge might have been appointed under the disputed system was not enough, on its own, to justify refusing surrender.
The case returned to the Supreme Court after the Court of Justice of the European Union (CJEU) answered a question referred by the Irish court. The CJEU had clarified that a person resisting surrender must provide specific evidence showing how systemic or generalised deficiencies are likely to affect their particular criminal case. The fact that the trial judges’ identities are unknown before surrender does not itself establish a real risk.
The appellants argued that they would have no effective remedy in Poland to challenge the composition of the court assigned to try them. They relied, among other things, on a European Court of Human Rights decision concerning access to a court. They also asked the Supreme Court to seek further information under section 20 of the European Arrest Warrant Act 2003.
The Minister for Justice and Equality submitted that general concerns about judicial appointments were insufficient without a case-specific assessment. The Minister also argued that the appellants had not shown how their personal circumstances or the nature of their cases would be affected.
Justice Dunne said the evidence did not show that the judges assigned to either case would have been appointed under the disputed system, or that any such appointment would create a real risk to the appellants’ fair-trial rights. She said further information gathering would not usefully advance the cases at this stage. The Court acknowledged the appellants’ difficulty in identifying their judges before surrender, but found that the material did not establish a specific risk to either man.
The Court therefore directed surrender to Poland. The judgment addressed the evidence and legal test before it; it did not determine the outcome of either criminal case.