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.

German extradition of Roman Pisciotti did not breach anti-discrimination principles, rules CJEU

The CJEU today ruled that Germany were right to extradite Roman Pisciotti to the US. Mr Pisciotti was accused of anti-trust offences which took place in Florida between 1999 and 2006. A Florida court issued a warrant for his arrest in 2010 and he was eventually arrested at Frankfurt airport in 2013. Germany extradited Mr Pisciotti to the US in 2014 where he served a 2-year prison sentence. In the CJEU, his lawyers argued that as he is an EU citizen he should have been treated equally to German citizens and therefore not extradited to the US as Article 16 of Germany’s Basic Law prevents Germans from being extradited other than to other EU Member States. Therefore, despite being Italian, Mr Pisciotti argued that when in Germany he was entitled under EU law to the same protection as a German citizen. The CJEU decided that Germany’s decision to extradite Mr Pisciotti did not breach EU anti-discrimination principles and that such principles should not be used in a way that would result in individuals being granted immunity from justice throughout the EU. The effect of the CJEU judgement is that Germany does not have to offer all EU citizens the same protection from extradition as it does its own citizens. However, the court held that where the extradition of an EU citizen was requested by a 3rd country, outside of the EU, from an EU Member State that would not ordinarily extradite its own citizens to that 3rd country, the authorities of that Member State should first enquire with requested person’s country of citizenship whether it wished to prosecute him for the offence that was the subject of the extradition request. If his country of citizenship declined, then extradition to the 3rd country could follow.

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.