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.

Irish Supreme Court- Gary Davis, alleged Silk Road administrator, will be extradited to the US

This week the Irish Supreme Court rejected the appeal of Mr Gary Davis who sought to prevent his extradition to the US to face a trial on charges of conspiracy to distribute narcotics, conspiracy to commit computer hacking and conspiracy to commit money laundering. The US alleges that Mr Davis was an administrator on the Dark Web drug website, Silk Road. If he is convicted in the US, he could receive a sentence of life imprisonment.

Mr Davis appealed to the Irish Supreme Court and urged the judges to refuse the request to extradite him on grounds including that he suffers from Asperger’s Syndrome.
Yesterday the Supreme Court rejected his appeal, the five judges explained that they were satisfied that Mr Davis had not established that there was a real risk that his fundamental rights would be infringed if extradited to the US.
The Irish Supreme Court had been asked to consider questions of general public importance. These included:
1. In the context of an extradition hearing, is the State constitutionally obliged to protect vulnerable persons suffering from mental illness and in what circumstances under that duty, should an extradition request be refused?
2. Is Mr Davis’s Asperger’s syndrome so severe that he should not be extradited to the US on the basis that he would suffer mental harm as a result of being imprisoned and having very little contact with his family?

The Irish Supreme Court concluded that there is a constitutional obligation on the State to protect all persons in the context of an extradition application, and not just those suffering from mental illnesses. However, it is for the person whose extradition is sought to establish that there are substantive grounds for believing that if extradited there is a real risk of being subjected to degrading behaviour in breach of Article 3 ECHR. Having reviewed all the evidence, the Supreme Court found that Mr Davis had not demonstrated such a risk. Additionally, the court added that this case was to be distinguished from the UK Supreme Court decision in the Lauri Love case because in Mr Love’s case the evidence of his Asperger’ Syndrome was much stronger regarding the effect on his mental health and the risk of suicide if extradited. The Irish Supreme Court contrasted this to Mr Davis’s case where there had been an absence of evidence that Mr Davis had undergone treatment or counselling for depression or anxiety. He had also not seen a specialist for therapy for his Asperger’s Syndrome.

After handing down their decision, the Irish Supreme Court granted Mr Davis’ lawyers a 48-hour stay on his surrender to allow his lawyers advise him on the judgement and to consider a possible referral of the case to the European Court of Human Rights.

 

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.

Interpol European Regional Conference – Dublin

Today, at the 46th Interpol European Regional Conference in Dublin, Irish Justice Minister Charlie Flanagan announced that the Irish Passenger Information Unit (IPIU) will begin its work on the 25th May. IPIU will receive Passenger Name Recognition (PNR) data from air carriers, and then exchange and process this data with Europol and the EU other EU member states. Mr Flanagan explained that the aim is to assist in strengthening the integrity of the EU’s borders, help to thwart serious criminals and terrorists and overall enhance public safety.

DIRECTIVE (EU) 2016/681 provides that air carriers have an obligation to provide member state’s authorities with the PNR data for flights entering or departing the EU. The idea is that PNR data will become an important resource for police and law enforcers who are investigating serious crimes, for example drug/sex trafficking, terrorism and sex tourism.

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.