Irish Court were right to postpone the extradition of Artur Celmer- CJEU Advocate General

This week the CJEU Advocate General, Evgeni Tanchev, issued an opinion which concluded that the Irish High Court was correct to postpone the extradition of Artur Celmer to Poland. The Irish High Court postponed the extradition due to concerns about the Polish government’s interference with the judiciary. Mr Tanchev also pointed out that this did not mean that all Polish extradition requests should be rejected and that in this case it would be for the Irish court to establish all the facts to see if Mr Celmer was indeed able to have a fair trial.

This opinion was issued in light of the European Union’s recent launching of an Article 7 case against Poland for what the European Commission calls the “systematic” undermining of the Polish judiciary and the rule of law. In December last year, under Article 7 of the Treaty on European Union, the European Commission asked the EU Council of Ministers to explore if the changes to the Polish justice system meant there was a clear risk of a serious breach of the rule of law by Poland.

Mr Tanchev explained that European Arrest Warrants must not be executed if there was a real risk of a “flagrant denial of justice” due to any deficiencies in the justice system of the issuing Member State. He added that there would also have to be clear evidence that the person being extradited was exposed to such a risk. To postpone an extradition there needs to be a real risk of a flagrant denial of justice. Establishing a risk to the right to a fair trial is not enough because the right to a fair trial could be subject to limitations, so long as those limitations respected the essence of that right. Therefore, the executing judicial authority was required to postpone the execution of an arrest warrant only if there was a real risk of a breach of the essence of the right to a fair trial.

Celmer: The protection of fundamental rights in Poland

This Friday the CJEU will be hearing evidence in the case of Artur Celmer, a Polish national who is wanted on drug trafficking charges. He is currently being held in an Irish prison on a European Arrest Warrant. The case was referred, by Justice Donnelly of the Irish High Court, to the CJEU on the question of whether the Polish justice system could protect Mr Celmer’s fundamental rights given that there has been a breakdown of the rule of law in Poland.

Lawyers for the Irish Attorney General, will argue that a fair trial in Poland is possible and therefore Mr Celmer should be extradited. Whereas Mr Celmer’s lawyers will be arguing that given the erosion of the Rule of Law, in Poland, Mr Celmer will not face a fair trial for the drug trafficking crimes he has been charged with.
In Poland this week, the Deputy Justice Minister accused the Irish High Court of playing “political games.” These comments were in response to Justice Donnelly’s previous suggestion that Polish legal reforms had bought the independence of the Polish judiciary into doubt and consequently undermined trust in the European Arrest Warrant system.

Irish High Court halts Polish extradition request over rule of law fears and refers it to the ECJ

The Irish High Court has halted Poland’s request for the extradition of Artur Celmer, a Polish citizen wanted by Poland on charges of drug-trafficking, and referred the case to the ECJ for guidance.

In her ruling, Justice Aileen Donnelly said that the rule of law in Poland “has been systematically damaged” by cumulative legislative changes and that respect for the rule of law was essential “for mutual trust in the operation of the European Arrest Warrant”.

At the end of last year, the European Commission concluded that there was “a clear risk of a serious breach of the rule of law in Poland” after judicial reforms in Poland meant that, in its view, the country’s judiciary was “now under the political control of the ruling majority” (EU press release here). The ruling is a significant and, arguably, unprecedented indictment by a national court of the legal system in another State, which no doubt will be used to challenge Polish EAWs in many other jurisdictions.

 

Mikheil Saakashvili deported from Ukraine

Mikheil Saakashvili, former president of Georgia, has been deported from Ukraine to Poland. He lost his Georgian citizenship when he became a citizen of Ukraine in 2015, and was stripped of his Ukrainian citizenship by Ukraine’s president Petro Poroshenko in July last year.

Ukraine twice turned down extradition requests for Mr Saakashvili from Georgia, but deported him after he was convicted in a Ukrainian court last September of illegally entering the country and another court declined to grant him refugee status at the start of the year. His lawyer has described his deportation as a kidnapping, and Mr Saakashvili has claimed his treatment is politically motivated in light of his activism in the country. Ukraine has denied this charge.

Malarz v Regional Court of Opole, Poland – Appeal against extradition from UK dismissed

EAW – England and Wales – Poland – Appeal – Appeal dismissed – Abuse of process – Article 8 ECHR – Validity of EAW

Wojciech Malarz appealed against his extradition from the UK to Poland on a conviction EAW (“the third EAW”), where he is wanted to serve a sentence of 14 months’ imprisonment for assault. The Administrative Court dismissed his appeal, in Malarz v Regional Court of Opole, Poland [2018] EWHC 28 (Admin).

Two previous EAWs issued by Poland in respect of the assault and a separate conviction for unlawful assembly had already been discharged by the UK courts.

Abuse of process

The Court dismissed the appellant’s argument that the third EAW was an abuse of process, which he based on the fact that Poland had not stated the difference between the third and the unsuccessful first EAW concerning his assault conviction. The Court found that although it was unfortunate that no explanation was provided sooner, this was far from being cogent evidence that the judicial authority had sought to subvert or impugn the integrity of the Extradition Act 2003 or the EAW regime.

The Court also noted that an inconsistency in the third EAW stating two different limitation periods, although bordering on incompetent, did not change the fact that it was a warrant in proper form and substance on which the first instance judge was bound to act.

Article 8 ECHR

The Court acknowledged a failure by the CPS to properly oversee the appellant’s case, including with respect to the above inconsistency in stated limitation periods, leading to delays and a confounded expectation on the appellant’s part that he would not be extradited. However, although these factors weighed against the proportionality of extradition, it found that neither they nor the appellant’s developed family life in the UK outweighed the public interest in his extradition.

The Court noted that this was not the only possibly view under the Polish Judicial Authorities v Celinski test, but that the first instance judge was not wrong to take it.

Validity of the EAW

Although an earlier EAW in respect of the appellant’s assault conviction in Poland had been discharged by the UK courts, the Court found that the amended third EAW was substantively different and therefore valid. In support of this finding, it also noted that the appellant was well aware that Poland intended to press for his extradition under the third EAW.

Hein v The Regional Court In Opole, Poland [2015] EWHC 2855 (Admin)

On 9 October 2015, the High Court dismissed the appeal of Pitor Hein, against the order for his extradition, to Poland from the United Kingdom, pursuant to a European Arrest Warrant (EAW).

The judgment is here.

Facts

An EAW was issued by the Regional Court in Opole in Poland, on 13 December 2012, for Mr Hein’s arrest, and certified by the National Crime Agency (NCA) on 6 January 2015. The EAW relates to five alleged offences of fraud committed between 22 May and 30 July 2002, totalling £2,753 in value.

District Judge Goldspring, 19 June 2015

Before District Judge Goldstein, sitting at Westminster Magistrates’ Court, Mr Hein (who was not legally represented) raised two challenges to extradition:

  1. Due to the passage of time it would be unjust or oppressive to extradite him, pursuant to section 14 of the Extradition Act 2003 (EA 2003).
  2. It would contravene his rights under Article 8 of the European Convention on Human Rights (ECHR), pursuant to 21 EA 2003.

District Judge Goldstein was also obliged to consider the independent statutory proportionality bar under s. 21A EA 2003.

On 19 June 2015, District Judge Goldspring rejected all three grounds and ordered Mr Hein’s extradition to Poland. His appeal was granted by Cranston J, who observed that the matters were “finely balanced”, and that the outcome might have been different if Mr Hein had been legally represented.

High Court, 9 October 2015

Mr Hein (who was now legally represented) pursued the same bars to extradition on appeal. Mr Justice Supperstone sitting at the High Court held:

  1. It is not possible to rely on the bar if Mr Hein had been responsible for the delay. Gomes District Judge Goldstein was entitled to find that Mr Hein was a fugitive on the evidence; nothing undermined this finding.
  2. District Judge Goldstein had proper regard to the relevant authorities. Norris; HH; Celinski The question is whether the DJ made the wrong decision: In the Matter of B (a child) (FC). The District Judge was entitled to find that Mr Hein is facing serious allegations and, if convicted, a custodial sentence is likely to follow. He noted that the interests of children are a primary consideration, and had regard to the existence of Mr Hein in the UK, his family life, and the hardship he would suffer, were he to be extradited. District Judge Goldstein was entitled to consider the factors in favour of discharge. The finding that the Mr Hein’s children can and will be provided with an appropriate environment in which to be brought up, taken alongside the factors in favour of discharge, reduced the public interest in honouring extradition arrangements. However, this finding did not make it disproportionate for Mr Hein to be extradited.

With respect to the statutory proportionality bar, under s. 21A EA 2003, there was no evidence that the Polish authorities would take measures which would be more coercive than Mr Hein’s extradition.

Appeal dismissed.