Supreme Court dismisses appeal on surrender to Poland, finding no real risk to fair trial rights.

AN CHÚIRT UACHTARACH THE SUPREME COURT [S:AP:IE:2018:000181] Birmingham P. O’Donnell J. McKechnie J. Dunne J. Charleton J.

IN THE MATTER OF THE EUROPEAN ARREST WARRANT ACT 2003 (AS AMENDED)

BETWEEN/ THE MINISTER FOR JUSTICE AND EQUALITY APPLICANT/RESPONDENT AND ARTUR CELMER RESPONDENT/APPELLANT AND BY ORDER THE IRISH HUMAN RIGHTS AND EQUALITY COMMISSION AMICUS CURIAE Judgment of O’Donnell J. delivered the 12th day of November 2019.

Introduction

1. The appellant, Artur Daniel Celmer, is the subject of three European Arrest Warrants (“E.A.W.s”) issued by three separate regional courts in Poland (the Regional Courts of Poznan, Warsaw, and Wloclawek, respectively). The warrants seek his surrender to face trial in respect of five charges relating to offences characterised as “illicit production, processing, smuggling of intoxicants, precursors, surrogates or psychotropic substances or trafficking in same” and “participation in an organised criminal group or association whose aim is to commit the said offences”. The only ground of objection which is now under consideration is the appellant’s assertion that the court should not order his surrender in reliance on the provisions of s. 37 of the European Arrest Warrant Act 2003 (as amended) (“the 2003 Act”), which provides, inter alia, that the surrender should not be effected where to do so would be incompatible with the State’s obligations under the European Convention on Human Rights (“E.C.H.R.”), or would be a contravention of the Constitution.

2. The 2003 Act implements Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (as amended by Council Framework Decision 2009/299/JHA of 26 February 2009) (“the Framework Decision”). Recital 12 provides that the Framework Decision respects fundamental rights and observes the principles recognised by Article 6 of the Treaty on European Union (“TEU”) and reflected in the Charter of Fundamental Rights of the European Union (“C.F.R.E..U.” or “the Charter”).

3. The objection raised by the appellant was that systemic changes had been made to the organisation of the judiciary in Poland that had undermined the independence of the judiciary. It was contended that this, therefore, violated the respondent’s right to a fair trial guaranteed by Article 47 C.F.R.E.U. A right to a fair trial is of course also guaranteed by Article 6 of the E.C.H.R. and Articles 34, 38, and 40 of the Irish Constitution. It was not suggested in this case that any different analysis would arise in respect of the rights guaranteed under either of those instruments and no issue was raised in relation to the fact that the fact that the Charter is not specifically referred to in s. 37. The fundamental issue raised was whether the legislative changes in Poland had the effect of depriving the applicant of the right to a fair trial to such an extent as to oblige the executing authority, in this case the Irish courts, to refuse to surrender him in response to the European arrest warrants issued in Poland.

4. It is perhaps helpful to set out, at this point, the applicable provisions in greater detail.

The Treaty on European Union

5. Article 2 TEU states:-

“The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.”

6 Article 6 TEU provides:-

“1. The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adapted at Strasbourg, on 12 December 2007, which shall have the same legal value as the Treaties.

The provisions of the Charter shall not extend in any way the competences of the Union as defined in the Treaties.

The rights, freedoms and principles in the Charter shall be interpreted in accordance with the general provisions in Title VII of the Charter governing its interpretation and application and with due regard to the explanations referred to in the Charter, that set out the sources of those provisions.

2. The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms. Such accession shall not affect the Union's competences as defined in the Treaties.

3. Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union's law.”

7 Article 7 TEU provides for a mechanism for the determination of a breach of the values referred to in Article 2. It provides:-

“1. On a reasoned proposal by one third of the Member States, by the European Parliament or by the European Commission, the Council, acting by a majority of four fifths of its members after obtaining the consent of the European Parliament, may determine that there is a clear risk of a serious breach by a Member State of the values referred to in Article 2. Before making such a determination, the Council shall hear the Member State in question and may address recommendations to it, acting in accordance with the same procedure.

The Council shall regularly verify that the grounds on which such a determination was made continue to apply.

2. The European Council, acting by unanimity on a proposal by one third of the Member States or by the Commission and after obtaining the consent of the European Parliament, may determine the existence of a serious and persistent breach by a Member State of the values referred to in Article 2, after inviting the Member State in question to submit its observations.

3. Where a determination under paragraph 2 has been made, the Council, acting by a qualified majority, may decide to suspend certain of the rights deriving from the application of the Treaties to the Member State in question, including the voting rights of the representative of the government of that Member State in the Council.

In doing so, the Council shall take into account the possible consequences of such a suspension on the rights and obligations of natural and legal persons.

The obligations of the Member State in question under the Treaties shall in any case continue to be binding on that State.

4. The Council, acting by a qualified majority, may decide subsequently to vary or revoke measures taken under paragraph 3 in response to changes in the situation which led to their being imposed.

5. The voting arrangements applying to the European Parliament, the European Council and the Council for the purposes of this Article are laid down in Article 354 of the Treaty on the Functioning of the European Union.”

8. It should be observed at this point that a reasoned proposal dated 20 December 2017 has been made by the European Commission to the Council pursuant to Article 7(1) TEU inviting the Council to determine that there is a clear risk of a serious breach by Poland of the values referred to in Article 2 TEU in respect of the rule of law (see COM (2017) 835 (final)) (“the Reasoned Proposal”) . The procedure established by Article 7(1) TEU was ongoing at the time of the proceedings in the High Court here, and has not yet concluded.

The Charter of Fundamental Rights of the European Union

9. Article 47 C.F.R.E.U. contains a guarantee of a right to a fair trial. It provides:- “Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.

Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented.

Legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice.”

10. Article 48 C.F.R.E.U. guarantees the presumption of innocence and right of defence, and provides:-

“1. Everyone who has been charged shall be presumed innocent until proved guilty according to law.

2. Respect for the rights of the defence of anyone who has been charged shall be guaranteed.”

11. Subsequent Articles of the Charter provide for the principles of legality and proportionality of criminal offences and penalties, and for the right not to be tried or punished twice for the same offence. These rights, it should be observed, apply only within the scope of European law in accordance with Article 51 C.F.R.E.U. Article 52 C.F.R.E.U. clarifies the scope of the guaranteed rights:-

“1. Any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms.

Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others.

2. Rights recognised by this Charter which are based on the Community Treaties or the Treaty on European Union shall be exercised under the conditions and within the limits defined by those Treaties.

3. In so far as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection.”

The Framework Decision

12. The Framework Decision was designed to speed up the procedure for extradition of suspected offenders or those fleeing from justice following conviction. Extradition between Member States was to be abolished and replaced by a system of surrender.

Recital 10 is particularly relevant, and corresponds to the provisions of Article 7 TEU:- “The mechanism of the European arrest warrant is based on a high level of confidence between Member States. Its implementation may be suspended only in the event of a serious and persistent breach by one of the Member States of the principles set out in Article 6(1) of the Treaty on European Union, determined by the Council pursuant to Article 7(1) of the said Treaty with the consequences set out in Article 7(2) thereof.”

13. Recital 12 provides as follows:-

“This Framework Decision respects fundamental rights and observes the principles recognised by Article 6 of the Treaty on European Union and reflected in the Charter of Fundamental Rights of the European Union, in particular Chapter VI thereof. Nothing in this Framework Decision may be interpreted as prohibiting refusal to surrender a person for whom a European arrest warrant has been issued when there are reasons to believe, on the basis of objective elements, that the said arrest warrant has been issued for the purpose of prosecuting or punishing a person on the grounds of his or her sex, race, religion, ethnic origin, nationality, language, political opinions or sexual orientation, or that that person's position may be prejudiced for any of these reasons.

This Framework Decision does not prevent a Member State from applying its constitutional rules relating to due process, freedom of association, freedom of the press and freedom of expression in other media.”

The European Arrest Warrant Act 2003 (as amended)

14. Section 37 of the 2003 Act is clearly referable to Recital 12 of the Framework Decision, although it might be said that it sets the matter out in more explicit terms. It provides as follows:-

“37.—(1) A person shall not be surrendered under this Act if—

(a) his or her surrender would be incompatible with the State's obligations under—

(i) the Convention, or

(ii) the Protocols to the Convention,

(b) his or her surrender would constitute a contravention of any provision of the Constitution (other than for the reason that the offence specified in the European arrest warrant is an offence to which section 38 (1)(b) applies),

(c) there are reasonable grounds for believing that—

(i) the European arrest warrant was issued in respect of the person for the purposes of facilitating his or her prosecution or punishment in the issuing state for reasons connected with his or her sex, race, religion, ethnic origin, nationality, language, political opinion or sexual orientation, or

(ii) in the prosecution or punishment of the person in the issuing state, he or she will be treated less favourably than a person who—

(I) is not his or her sex, race, religion, nationality or ethnic origin, (II) does not hold the same political opinions as him or her, (III) speaks a different language than he or she does, or (IV) does not have the same sexual orientation as he or she does, or

(iii) were the person to be surrendered to the issuing state—

(I) he or she would be sentenced to death, or a death sentence imposed on him or her would be carried out, or (II) he or she would be tortured or subjected to other inhuman or degrading treatment.

(2) In this section—

“Convention” means the Convention for the Protection of Human Rights and Fundamental Freedoms done at Rome on the 4th day of November, 1950, as amended by Protocol No. 11 done at Strasbourg on the 11th day of May, 1994; and

“Protocols to the Convention” means the following protocols to the Convention, construed in accordance with Articles 16 to 18 of the Convention:

(a) the Protocol to the Convention done at Paris on the 20th day of March, 1952;

(b) Protocol No. 4 to the Convention securing certain rights and freedoms other than those already included in the Convention and in the First Protocol thereto done at Strasbourg on the 16th day of September, 1963;

(c) Protocol No. 6 to the Convention concerning the abolition of the death penalty done at Strasbourg on the 28th day of April, 1983;

(d) Protocol No. 7 to the Convention done at Strasbourg on the 22nd day of November, 1984.”

The Proceedings in the High Court

15. The appellant’s objections to his surrender were considered in detail in a comprehensive judgment of the High Court (Donnelly J.) of 12 March 2018 (see [2018] IEHC 119)

(“Celmer (No. 1)”). The judgment records that the appellant’s objection under s. 37 of the 2003 Act was, virtually, exclusively based on the recent changes in Polish legislation concerning the judiciary, the courts, and the public prosecutor. The appellant relied, principally, on the provisions of the Reasoned Proposal of the European Commission referred to above, made in accordance with the provisions of Article 7(1) TEU. That document was a proposal for a Council decision on the determination of a clear risk of a serious breach on the part of the Republic of Poland of the rule of law. The proposal referred to, and the appellant also relied on, a series of Opinions of the European Commission of Democracy through Law (“the Venice Commission”), an advisory body of the Council of Europe, which had been issued in respect of the legislative changes in the Republic of Poland.

16. The judgment of Donnelly J. in Celmer (No. 1) set out, in some detail, the evidence regarding the position then obtaining in Poland in respect of the independence of the judiciary. It is not necessary to repeat all the matters set out in detail in the judgment.

However, it can be said that the judgment, in reliance on the Reasoned Proposal, recorded a number of important matters:-

(i) The annulment, by the lower house of the legislature (the Sejm), of the appointment (by the previous Sejm) of five judges to the Constitutional Tribunal, three of whom were to fill existing vacancies and two to fill anticipated vacancies:

the decision of the Constitutional Tribunal was that the appointment of the three judges to fill existing vacancies was valid, but that the previous Sejm had not been entitled to appoint two judges in respect of vacancies which had not yet occurred;

(ii) The decision of the Constitutional Tribunal invalidating the appointment of three new judges in respect of those positions where the Constitutional Tribunal had held that the prior appointments had been valid;

(iii) The adoption of a law concerning the Constitutional Tribunal and the independence of judges;

(iv) The decision of the Constitutional Tribunal that the law adopted was unconstitutional;

(v) The fact that the decision of the Constitutional Tribunal in this regard was not published in this official journal, meaning that it did not have legal effect;

(vi) The fact that the European Commission gave a rule of law opinion in respect of Poland that there was a systemic threat to the rule of law in that country;

(vii) The decision of the Constitutional Tribunal invalidating the provisions of the law criticised by the rule of law opinion;

(viii) The fact that this further decision of the Constitutional Tribunal was also not published in the official journal and was therefore deprived of legal effect;

(ix) The adoption by the European Commission of a recommendation on the rule of law on Poland concerning the laws amending the law on the National School of Judiciary and Public Prosecution and the law on the Ordinary Courts Organisation and the Law on the Supreme Court;

(x) The adoption of a resolution by the parliamentary assembly of the Council of Europe and of the European Network of Councils of the Judiciary and a further resolution by the European Parliament;

(xi) The fact that the law on the Supreme Court reduced the compulsory age of retirement of judges from 70 to 65. The judges affected by the provision could make a request to the President of Poland to extend their service. The European Commission considered that these provisions “constitute[d] a flagrant violation of the independence of judges of the Supreme Court and of the separation of powers, and therefore of the rule of law”;

(xii) A provision permitting extraordinary appeals which would allow the Supreme Court to overturn any decision previously delivered by a Polish court in the previous year in respect of criminal cases, and in the previous 20 years in respect of other cases;

(xiii) A provision permitting appointment of extraordinary disciplinary officers by the President with powers in respect of judges. This permitted the President, and in some cases the Minister of Justice, to influence disciplinary proceedings against judges;

(xiv) A new law on the National Council for the Judiciary establishing an entirely new regime for appointment, allowing a high degree of political influence;

(xv) A new retirement age for ordinary judges which reduced the age of retirement from

67 to 60 in the case of female judges and from 67 to 65 in the case of male judges, and which gave the Minister of Justice power to decide on the prolongation of mandates until the age of 70. The Minister of Justice also had power to dismiss the presidents of courts with no criteria set for dismissal, no obligation to state reasons, and no possibility of judicial review;

(xvi) The adoption of a law allowing assistant judges to be appointed with lesser status than ordinary judges, notwithstanding that a previous regime for the appointment of assistant judges had been found by the European Court of Human Rights (“the E.Ct.H.R.”) to be inconsistent with judicial independence;

(xvii) A law permitting the Public Prosecutor’s Office to be merged with the Minister of Justice. The Minister of Justice and the Public Prosecutor General gained significantly increased powers of prosecution and management in this system, enabling the Minister of Justice to intervene in individual cases.

17. The Reasoned Proposal concludes that the European Commission was of the opinion that the situation described represented “a clear risk of a serious breach by the Republic of Poland of the rule of law referred to in Article 2 TEU”. The Reasoned Proposal noted (at para. 173) that there had been more than 13 legislative changes over a period of two years affecting the entire judicial system, a common pattern of which was that the executive and legislative powers had been systematically enabled to interfere with the composition, powers, and functions of judicial bodies, and that these changes had been adopted notwithstanding three formal recommendations on the rule of law issued by the European Commission.

18. The High Court noted that the applicable test under the E.C.H.R. where surrender or extradition was resisted on the grounds of the violation of a right depended on the right which it was claimed would be violated. In the case of the claim of a violation of Article 3 E.C.H.R. (the right to freedom from torture or inhuman or degrading treatment, also prohibited by Article 4 C.F.R.E.U.), which is an absolute right, it is sufficient that there is a “real risk of violation, but in the case of other Convention rights, which may be limited, it must be shown that there is a “flagrant violation”. In the case of a claimed violation of the Article 6 guarantee of a fair trial, this required therefore the demonstration of a “flagrant denial of justice”. This test is consistent with the judgment of the Supreme Court, and of Murray C.J. in Minister for Justice v. Brennan [2007] IESC 21, [2007] 3 I.R.

732 (“Brennan”), where, in the words of Murray C.J., it would take “egregious circumstances such as a clearly established and fundamental defect in the system of justice of a requesting State” for surrender under the 2003 Act to be refused on the basis of a breach of fundamental rights in respect of the justice system.

19. The High Court accepted that the invocation of the Article 7(1) procedure by the European Commission was a political and not a legal act, but concluded that the Reasoned Proposal carried great evidential weight. The court concluded at para. 124 of the judgment that the rule of law had been “systematically damaged by the cumulative impact of all the legislative changes”. At para. 128 of the judgment, the court addressed the position of the Polish Minister of Justice:-

“If the [appellant] is surrendered, he will be returning to face trial in a jurisdiction where the Minister of Justice is now the Public Prosecutor and is entitled to play an active role in prosecutions. The same Minister of Justice has a disciplinary role over the Presidents of Courts. This has the potential for a chilling effect on those Presidents, with consequential impact on the administration of justice. As the Venice Commission notes at para 103 of Opinion No. 904/2017: “the president of the courts in the Polish system have vast powers vis-á-vis the ordinary judges and play important role[s] in the case management process….which makes strong dependence of the presidents before the [Minister of Justice] even more problematic.”

20. The High Court then turned to the obligation to surrender under the E.A.W. in light of the fact that the rule of law in Poland had been systematically damaged by the cumulative impact of the legislative changes. The court raised the question of whether the failure to abide by the rule of law amounted to “a flagrant denial of justice” or, adopting the language of Brennan, an “egregious circumstance” which amounted to a clearly established and fundamental defect in the system of justice in Poland. The High Court considered the approach of the Court of Justice of the European Union (“the C.J.E.U.”) in the case of Aranyosi and Căldăraru (Joined Cases C-404/15 and C-659/15 PPU) [2016] 3 C.M.L.R. 359 (“Aranyosi and Căldăraru”), concerning prison conditions in Romania, in which there had been a finding that the conditions generally were in breach of Article 4 C.F.R.E.U., prohibiting inhuman or degrading treatment. In those joint cases, the C.J.E.U. had stated that judicial authorities invited to execute European arrest warrants were bound to assess the existence of a risk of breach of Article 4 C.F.R.E.U. That assessment involved a two-stage process: first; a consideration of the systemic conditions within the requesting state, and, second; a consideration of whether such conditions would apply in the individual case. For that purpose, the court should seek further information from the requesting state in relation to the position of the individual concerned, and could take into account any assurances provided by the requesting state.

21. Significantly for present purposes, the High Court questioned at para. 141 whether such a two-step procedure was realistic or appropriate where the breach alleged was of the Article 47 guarantee of a fair trial, and where systemic defects had been identified in respect of the independence of the judiciary:-

“Where there is such a fundamental defect in a system of justice that the rule of law in the Member State has been threatened, it is difficult to see how the principles of mutual trust and mutual recognition may operate. Furthermore, where these are such egregious defects in the system of justice, it appears unrealistic to require a requested person to go further and demonstrate how, in his individual case, these defects will affect his trial.”

22. The High Court considered that the two-step test in Aranyosi and Căldăraru was predicated on mutual trust and recognition between judicial authorities:-

“The judgment of the CJEU in Aranyosi and Căldăraru proposes a two-step approach in determining whether fundamental rights have been breached. An initial finding of general or systemic deficiencies in the protections in the issuing state must be made, and the executing judicial authority must then seek all necessary supplementary information from the issuing state as to the protections for the individual concerned. These tests have been predicated on mutual trust and mutual recognition. A problem with adopting that approach in the present case is that the deficiencies identified are to the edifices of a democracy governed by the rule of law. In those circumstances, it is difficult to see how individual guarantees can be given by the issuing judicial authority as to fair trial when it is the system of justice itself that is no longer operating under the rule of law.”

23. In the light of these considerations, the High Court decided to make a reference to the C.J.E.U. under Article 267 of the Treaty on the Functioning of the European Union (“the T.F.E.U.”). It will be necessary to consider the precise terms of the reference, the opinion of the Advocate General, and the decision of the court thereon in due course, but it is important at this point to recognise the backdrop against which that request was made, in order to understand precisely what was asked of the C.J.E.U., and as importantly, what was not.

24. The request for a preliminary ruling was published as a judgment dated 23 March 2018 (see [2018] IEHC 153) (“Celmer (No. 3)”). This request contained a number of relevant findings of fact (at paras. 26 to 30), concluding that the rule of law in Poland had been systematically damaged by the cumulative impact of all the legislative changes, that the common value of the rule of law in Poland had been breached, and that there was a real risk of the appellant being subjected to arbitrariness in the course of his trial because of the system’s wide and unchecked powers was inconsistent with a democratic state subject to the rule of law. The court determined (at para. 29) that “where fundamental values such as independence of the judiciary and respect for the Constitution are no longer upheld, those systemic breaches of the rule of law are, by their nature, fundamental defects in the system of justice”.

25. The request also set out the respective positions of the parties. The appellant contended that the finding undermined the basis of mutual trust between the issuing and executing judicial authorities, and therefore the requirement to make any further assessment, specific and precise, of whether there were substantial grounds to believe the individual concerned would be exposed to a risk of breach of their fundamental rights as per Aranyosi and Căldăraru, could not be applicable. The Minister, for his part, contended that any general or systemic deficiency, even if determined to be a fundamental and egregious deficiency, did not take away from the requirement for it to be established that the individual concerned would be exposed to a “real risk of a flagrant denial of justice”.

26. Accordingly, the court referred the following questions to the C.J.E.U.:-

(1) Notwithstanding the conclusions of the Court of Justice in Aranyosi and Căldăraru, where a national court determines there is cogent evidence that conditions in the issuing Member State are incompatible with the fundamental right to a fair trial because the system of justice itself in the issuing state is no longer operating under the rule of law, is it necessary for the executing judicial authority to make any further assessment, specific and precise, as to the exposure of the individual concerned to the risk of unfair trial where his trial will take place within a system no longer operating within the rule of law?

(2) If the test to be applied requires a specific assessment of the requested person’s real risk of a flagrant denial of justice and where the national court has concluded that there is a systemic breach of the rule of law, is the national court as executing judicial authority obliged to revert to the issuing judicial authority for any further necessary information that could enable the national court discount the existence of the risk to an unfair trial and if so, what guarantees as to fair trial would be required?

27. The request for a reference also set out the preliminary views of the national court. On the first question, the court was of the preliminary opinion that where there are egregious defects in the system of justice, it appears unrealistic to require a requested person to go further and demonstrate how, in their individual case, these defects will affect their specific trial, and this was to be distinguished from a situation in relation to, for example, conditions of detention in an issuing Member State. In such circumstances, it was conceivable that even where there were general and systemic deficiencies in a Member State, that did not inevitably lead to a conclusion that the individual would be subjected to inhuman or degrading treatment, as it could be possible to be provided with information and guarantees that the individual would not be subject to that risk. In relation to the second question, the court acknowledged that this was dependent on the C.J.E.U.’s answer to the first question, but nevertheless observed: “in light of the obvious difficulties of giving guarantees specific to the trial of an individual where the rule of law itself has been systemically breached, the [C.J.E.U.] may conclude that no realistic purpose can be served by requesting those types of individual guarantees. The [C.J.E.U.] may conclude that the type of guarantee required is one that demonstrates systemic compliance with the rule of law in the issuing state”.

Opinion of the Advocate General

28. Advocate General Tanchev delivered his Opinion on 28 June 2018 (Opinion in Minister for Justice and Equality v. L.M. (Case C-216/18 PPU) EU:C:2018:517) (“L.M. Opinion”). First, the Advocate General observed that, while there is a clear overlap between the values contained in Article 2 TEU and the specific rights guaranteed by the Charter, they are nevertheless distinct concepts. Furthermore, the roles the European Commission and the Council carry out respectively under Article 7 TEU are different and distinct from the issue for an executing judicial authority when it is asserted that surrender should not be effected because of an alleged breach of rights (whether guaranteed by the Charter, the E.C.H.R., or a domestic constitution). It is important to keep these distinctions clearly in mind. It is clear that the Advocate General considered that it was particularly important to proceed in a careful, precise, and sequential manner.

29. An initial question, therefore, was whether the jurisdiction to refuse to surrender in cases of a real risk of an anticipated breach first identified in Aranyosi and Căldăraru (which concerned an alleged breach of the guarantee contained in Article 4 C.F.R.E.U. prohibiting inhuman or degrading treatment) extends to a situation where it is alleged that a different right, in this case the right to a fair trial under Article 47 C.F.R.E.U., will be breached. The right protected by Article 4 C.F.R.E.U. is absolute, and does not admit of exceptions. On the other hand, the right protected by Article 47 C.F.R.E.U., like most other rights guaranteed by the Charter, may, by the terms of the Charter, be subject to limitation. The Advocate General concluded, however, that the jurisdiction in Aranyosi did indeed extend to an allegation that rights other than those protected by Article 4 C.F.R.E.U. would be breached. It is important to identify the reasoning of the Advocate General in this regard. It is worth observing that any trial of the appellant in Poland for offences relating to drug trafficking would not itself be directly controlled by the Charter, since such a trial is not itself within the scope or field of application of European Union law (the trial would, however, be directly subject to the E.C.H.R., whether implemented domestically, or as part of Poland’s international obligations as a contracting State of the Council of Europe, and of course also subject to Polish constitutional law). The Charter is engaged here by the request for surrender, since that is made pursuant to legislation implementing the Framework Decision.

30. The Advocate General observed that the principle of mutual co-operation, which has been identified as the cornerstone of judicial cooperation in civil and criminal matters, is itself founded on the principle of mutual trust between Member States of the European Union.

In the first place, such mutual trust operates at the level of the Member States. This means that, save in exceptional circumstances, each Member State is required to consider that another is complying with European law, and, in particular, with fundamental rights guaranteed under that law. It follows that Member States may not, save in exceptional circumstances, check whether another Member State has observed rights guaranteed by European Union law. It follows from this reasoning, it seems to me at least, that a

decision made by an executing authority to surrender pursuant to a European Arrest Warrant is not intended to be a primary method of enforcement of the obligations of Member States under the TEU, and, furthermore, that the courts of such Member States are not normally intended to become the mechanism for the enforcement of fundamental rights in another Member State. The courts of the Member State whose conduct is impugned and the E.Ct.H.R. are bodies whose function it is to deal with claims of individual breach, and Recital 10 of the Framework Decision addresses circumstances where issues of alleged systemic breach arise. There is also the possibility of an infringement action being commenced in the Commission. However, in exceptional circumstances, and in an individual case, a court may refuse to surrender notwithstanding its obligations of mutual trust. Mutual trust, as it was put, does not constitute blind trust (para. 55 of the L.M. Opinion).

31. While the jurisdiction in Aranyosi and Căldăraru is therefore of general application when it is asserted, and perhaps established, that a breach of Charter rights has occurred in another Member State, it is an exception to a general and important principle of European law, derived in part from the structure of Union law, and it follows that such limitation or exception must be interpreted strictly (para. 73).

32. What would be required before surrender should be refused was considered by the Advocate General. As already observed, the trial itself would not be within the scope of European law. The request for surrender, however, is. It is fundamental to any surrender that the request should issue by virtue of a judicial procedure which can enjoy mutual recognition. Borrowing from the reasoning of Advocate General Bobek as to the basis for a refusal of recognition of a judgment in another Member State pursuant to Regulation (EU) No. 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, only a judgment delivered in court proceedings offering guarantees of independence and impartiality, and in compliance with the principles of audi alteram partem, could satisfy that requirement. If, therefore, the deficiencies in a system in a particular instance are such that it could be said that the requesting court did not satisfy that definition, and in that sense was not a court at all, then the executing judicial authority could refuse to surrender. If the criminal courts of a Member State are no longer able to guarantee a fair trial, the principle of mutual trust no longer applies and automatic mutual recognition is therefore precluded. As the Advocate General observed at para. 65 of the Opinion:-

“[…] if there is a real risk of the procedure conducted in the issuing Member State not satisfying the requirements of the second paragraph of Article 47 of the Charter, the premiss forming the basis of the obligation in Article 1(2) of the Framework Decision to execute any European arrest warrant is absent.”

33. The Advocate General went on to specifically address a question not directly raised by the referring court, but rather assumed by all the parties in the proceedings before the Irish courts: the standard to be established before surrender could be refused in the case of an alleged breach of Article 47 C.F.R.E.U. In the case of an asserted breach of Article 4, the test set out in Aranyosi and Căldăraru was whether it could be shown that there was a “real risk” of breach of the right. However, under the E.C.H.R. (and, as the Advocate General noted, under Irish law), where it is alleged that the person will experience conduct which would be a breach of other rights if carried out in a contracting state, the relevant courts required a higher and different standard: surrender would only be refused where there is a real risk of a “particularly serious breach”, described in the jurisprudence of the ECtHR as a “flagrant breach”, and in this case a “flagrant denial of justice”. The Advocate General specifically addressed the question of whether it was only “where there is a real risk of a particularly serious breach of [Article 47(2) C.F.R.E.U.], such as a flagrant denial of justice” before surrender could be refused. The Advocate General proposed a test of a flagrant denial of justice on the basis, first, that the principles established that any exception to the obligation of mutual trust and confidence should be interpreted strictly; second, because the right to a fair trial guaranteed by Article 47 C.F.R.E.U. was not unlimited; and finally, because a similar test had been adopted in the jurisprudence of the E.Ct.H.R. That test had first been identified in the case of Soering v.

United Kingdom (App. No. 14038/88) (1989) 11 E.H.R.R. 439 (“Soering v. United Kingdom”). This test broadly corresponds to the test arising when it is alleged that surrender would breach a provision of the rights guaranteed under the Irish Constitution (see Brennan and Minister for Justice v. Balmer [2016] IESC 25, [2017] 3 I.R. 562) and may be said to be consistent with the obligation of mutual trust and confidence.

34. The next question addressed was whether a lack of independence, as asserted in the Reasoned Proposal, was itself capable of being a particularly serious breach so as to satisfy the test. In principle, a lack of independence could satisfy this test. However, the Advocate General pointed out that it was significant that on only four occasions since Soering v. United Kingdom had the ECtHR found that this test had been satisfied. On two occasions, this had concerned the question of surrender to tribunals having jurisdiction in terrorism cases and composed exclusively of members of the armed forces. Accordingly, the Advocate General considered, at para. 93 of the Opinion, that “the lack of independence and impartiality of a tribunal can be regarded as amounting to a flagrant denial of justice only if it is so serious that it destroys the fairness of the trial”. As the E.Ct.H.R. observed in the judgment in Othman (Abu Qatada) v. The United Kingdom (App. No. 8139/09) (2012) 55 E.H.R.R. 1, there is a crucial difference between the admission of evidence obtained by torture, at issue in that judgment, and breaches of Article 6 E.C.H.R. that are based on defects in the composition of the trial court.

35. Finally, Advocate General Tanchev turned to the question posed by the Irish court as to whether, in cases where it was alleged that Article 47 C.F.R.E.U. would be breached by reason of systemic conditions in a national court, it was necessary to take the further step identified in Aranyosi and Căldăraru of assessing if the individual concerned risked suffering a flagrant denial of justice. Again, the Advocate General concluded, at para. 104, that the executing authority “is required to postpone the execution of a European arrest warrant only where it finds not only that there is a real risk of flagrant denial of justice on account of deficiencies affecting the system of justice of the issuing Member State but also that the individual concerned would be exposed to that risk”. It was necessary to establish particular circumstances relating either to the person or the offence which could be said to expose him or her to the risk identified. The Advocate General observed that the appellant in this case had only asserted, generally, that the system of justice in Poland was deficient. He did not explain in what way the deficiencies in the Polish system of justice, assuming that they are proven, would prevent his case from being heard by an independent and impartial tribunal. He merely asserted, in a general manner, that the Polish system of justice did not satisfy the requirements of the rule of law. The Advocate General concluded that the executing judicial authority was required to postpone the execution of a European arrest warrant where it found not only that there was a real risk of flagrant denial of justice on account of the deficiencies in the system of justice of the issuing Member State, but also that the person who is the subject of that warrant is exposed to such a risk. In order for a breach of the right to a fair trial enshrined in Article 47(2) C.F.R.E.U. to constitute a flagrant denial of justice, that breach would have to be so serious that it destroyed the essence of the right protected by that provision. In order to determine whether the individual concerned was exposed to the risk of a flagrant denial of justice that is at issue, the executing judicial authority would have to take account of the particular circumstances relating both to that person and to the offence in respect of which he was being prosecuted, or had been convicted.

The Grand Chamber of the C.J.E.U.

36. The decision of the C.J.E.U. was delivered on 25 July 2018 (see Minister for Justice v. L.M.

(Case C 216/18 PPU) EU:C:2018:586) (“L.M.”). The C.J.E.U. reformulated the questions referred as follows:-

“Thus, by its two questions, which it is appropriate to examine together, the referring court asks, in essence, whether Article 1(3) of Framework Decision 2002/584 must be interpreted as meaning that, where the executing judicial authority, called upon to decide whether a person in respect of whom a European arrest warrant has been issued for the purposes of conducting a criminal prosecution is to be surrendered, has material, such as that set out in a reasoned proposal of the Commission adopted pursuant to Article 7(1) TEU, indicating that there is a real risk of breach of the fundamental right to a fair trial guaranteed by the second paragraph of Article 47 of the Charter, on account of systemic or generalised deficiencies so far as concerns the independence of the issuing Member State’s judiciary, that authority must determine, specifically and precisely, whether there are substantial grounds for believing that the individual concerned will run such a risk if he is surrendered to that State. If the answer is in the affirmative, the referring court asks the [C.J.E.U.] to specify the conditions which such a check must satisfy. (Emphasis added).”

37. The court observed that “while execution of the European arrest warrant constitutes the rule, refusal to execute is intended to be an exception which must be interpreted strictly”.

38. The court laid particular stress on the importance of the independence of courts, which it considered to be essential to the proper working of the judicial cooperation system embodied by the preliminary hearing mechanism under Article 267 T.F.E.U., and also in the context of the European arrest warrant mechanism. That meant that not only the

decision on executing a European arrest warrant, but also the decision to issue such a warrant must be taken by a judicial authority that meets the requirements inherent in effective judicial protection – including the guarantee of independence – so that the entire surrender procedure between Member States as provided for in the Framework Decision is carried out under judicial supervision. The court observed that:-

“It must, accordingly, be held that the existence of a real risk that the person in respect of whom a European arrest warrant has been issued will, if surrendered to the issuing judicial authority, suffer a breach of his fundamental right to an independent tribunal and, therefore, of the essence of his fundamental right to a fair trial, a right guaranteed by the second paragraph of Article 47 of the Charter, is capable of permitting the executing judicial authority to refrain, by way of exception, from giving effect to that European arrest warrant, on the basis of Article 1(3) of Framework Decision 2002/584.” (para.59)

39. The requirement that a court be independent is described as forming part of that right (to a fair trial under Article 47 C.F.R.E.U.) and has two aspects. First, an external aspect, requiring that the court, when exercising its functions, should do so autonomously without being subject to any constraint or being subordinated to any other body. Second, independence also had an internal component, linked to impartiality and seeking to ensure that the court maintains an equal distance from the parties to the proceedings and their respective interests.

40. However, the court pointed out that under the Framework Decision, surrender could only be suspended generally, if the European Council was to adopt a decision under Article 7(2) TEU that there was a serious and persistent breach in the issuing Member State of the principles set out in Article 2 TEU. So long as such a decision had not been adopted, then it was only in exceptional circumstances that a court could refuse to surrender, and that was where the authority found, after a specific and precise assessment of the particular case that there were substantial grounds for believing the person in respect of whom the European arrest warrant had been issued would, following a surrender to the issuing judicial authority, run a real risk of breach of his fundamental right to an independent tribunal and, therefore, of the essence of his fundamental right to a fair trial.

This assessment required the executing authority to examine, in particular, to what extent the systemic or generalised deficiencies regarding independence of the issuing Member State’s courts were liable to have an impact at the level of that state’s courts with jurisdiction over the proceedings to which the requested person would be subject (para.74). If so, the assessment must consider, in the light of any information supplied by the individual, and any concerns expressed by him or her, whether there are substantial grounds for believing that, having regard to his or her personal situation, and the nature of the offence charged, he or she will run a real risk of a breach of the fundamental right to a fair trial (para.75).

The subsequent proceedings in the High Court

41. There were a number of developments of some significance which were brought to the attention of the High Court when the matter returned to it to decide the case in accordance with the guidance given by the C.J.E.U (see [2018] IEHC 484) (“Celmer (No.

4)”). The existence of the proceedings had generated considerable public commentary in Poland. The court was informed of comments reportedly attributed to the Deputy Minister of Justice, with responsibility for European arrest warrants, that it was incomprehensible that general abstract deliberations, projections, and speculations, “become the basis of such an important decision as the handover of a criminal sought in the whole of Europe”.

The same Deputy Minister of Justice was recorded as describing the respondent as a “dangerous criminal”, and when questioned as to whether this was appropriate, responded by saying:-

“I named him as a criminal because the evidence is very concrete, but I accept the principle of presumption of innocence until the final judgment”.

A further newspaper reported the same Deputy Minister of Justice as stating:-

“we deplore the fact that the Irish court is suspending the punishment of a dangerous criminal from a drug mafia [sought] all over Europe with a European arrest warrant”.

42. In a judgment delivered on the 1st of August, 2018, the Irish High Court decided to seek further information from the Polish issuing judicial authority.

43. Subsequent to this, the Irish Human Rights and Equality Commission (“IHREC”) was joined as an amicus curiae and thereafter made submissions.

Further Information

44. In her judgment of 19 November 2018 (see [2018] IEHC 639) (“Celmer (No. 5)”), Donnelly J. proceeded to determine the issues in light of the further information received by the court. The request for further information led to further surprising and concerning developments. An expert report from Polish lawyers from the firm of Pietrzak Sidor & Wspólnicy was submitted on behalf of the appellant detailing the changes in the Polish system of justice.

45. The report addressed the position of the National Council for the Judiciary. The method of appointment of new members to the Council had been the subject of criticism in the Reasoned Proposal because it had been changed to permit members of the Council to be nominated by the Sejm, giving the parliament decisive influence on the composition of the Council. This was important and had a direct effect on the independence of judges because the Council had an important role in relation to promotion, transfer, disciplinary proceedings, early retirement, and dismissal. The rules relating to the composition of the National Council had not changed since the adoption of the Reasoned Proposal.

46. The law relating to the Ordinary Courts Organisation, criticised in the Reasoned Proposal, came into force on the 12th of August 2017. Since that date had been amended 15 times some of the amendments touching upon or directed towards matters addressed in the Reasoned Proposal. Under the 2017 law, the retirement age had been reduced for male judges from 67 to 65 and for female judges from 67 to 60. The Minister for Justice had the power to extend a judge’s mandate. Under a subsequent amendment, prolongation of the judicial mandate was to be decided by the National Council for the Judiciary.

47. A criterion for prolongation was added, which permitted extension of justified in the interest of justice or in important social interests, and in particular justified by the need to use resources rationally. No time frame was provided for any such a decision. The lawyers accordingly considered that the changes did not address the essential conclusion of the recent proposal and that the concerns expressed therein remained valid.

48. The 2017 law also permitted the Minister for Justice to dismiss court presidents and vicepresidents within a period of six months from the date of coming into force the law, without reasons or any concrete criteria. No judicial review of such a decision was envisaged. Following the six-month period, dismissal could still be affected in consultation with the National Council of Judges, which could only block a removal by a two-thirds majority. The report records that in the six-month period after the coming into force of the law at least the power to dismiss was utilised on at least 130 occasions. This provision was subsequently amended to permit removal, by the Minister, of presidents and vice-presidents, only after consultation with the board of the court. If the board, however, provided a negative opinion, the dismissal could still be effected unless blocked by a resolution of the National Council for the Judiciary by a two-thirds majority. Again, the lawyers expressed the opinion that the concerns expressed in the Reasoned Proposal remained valid.

49. A further issue addressed in the Reasoned Proposal was the power of appointment as president or vice-president. The only criteria was that the judge had to be selected from sitting judges. The report emphasised the important role of presidents and vicepresidents in the administration of justice, particularly because presidents of courts conducted internal supervision. Concern was also expressed in relation to disciplinary proceedings, in particular the power of the Minister for Justice to issue written notices to presidents or vice-presidents, coupled with reduction in salary. No changes had been made in respect of these matters, and the lawyers concluded that the concerns expressed in the Reasoned Proposal remained valid.

50. In relation to the specific European arrest warrant request, the report recorded that the presidents of each of the relevant courts (Warsaw, Poznan, and Wloclawek) had been changed by the Minister for Justice in two cases (Poznan and Wloclawek) as a result of the expiry of the mandate of the existing president, and in the case of Warsaw, before the end of the mandate of the previous president. The report considered that the changes to the constitutional tribunal addressed in the Reasoned Proposal were not relevant to the European arrest warrant request. However, changes at the level of the Supreme Court, might become directly relevant, if after a final judgment in the case, the individual concerned decided to lodge a cassation/extraordinary appeal.

51. The statements by the Deputy Minister indicated that the presumption of innocence had been infringed by representatives of the executive. These raised serious concerns “due to the current legal framework in which the Polish judicial system operates and which offers many avenues through which the executive may influence the judiciary.”

52. In addition to this information, the court also received responses from the issuing judicial authorities. The most detailed response was given by the President of the Warsaw Regional Court, Judge Joanna Bitner. President Bitner defended the Polish legal system and stated that “regardless, however, which view will prevail in the end [as to the constitutionality of the changes to the legal system], Polish law provides for guarantees of independence of judges, regardless of how the Council participating in their election process is created”. Guarantees of fair trial were provided for in the Constitution and international treaties ratified by Poland, including in EU law and the European Convention on Human Rights. She maintained that there was no risk of a violation by Polish courts of those highest values.

53. However, the court also received a reply from the Warsaw Regional Court from the judge named on the warrant issued by the court as a representative of the issuing judicial authority, Judge Piotr Gaciarek. There was a clear dispute between President Bitner and Judge Gaciarek as to who was to represent the issuing authority. As the High Court judge observed, this dispute only highlighted the considerable tensions that the recent legislative changes have wrought among the Polish judiciary.

54. Judge Gaciarek did not dispute the existence of the quoted provisions of the Polish constitution and the other provisions set out by President Bitner. However, he did not accept that there were no risks for the independence of judges in courts in Poland. He identified examples where judges had been summoned for disciplinary proceedings arising from politically controversial rulings. These, it should be noted, included what were described as the inclusion of prejudicial questions in references to the C.J.E.U. by individual judges, and a perception that disciplinary proceedings against another judge had been commenced because of a decision made acquitting N.G.O. activists who had protested at an election meeting of a member of the ruling party. Judge Gaciarek also raised concerns about evidence that might be admitted in disciplinary hearings. He also expressed the view that the concerns expressed by the Polish lawyers were legitimate beyond dispute. He considered that a common feature of all the alterations of the law is that they were undertaken with respect to judges who “openly criticize the amendments pushed by the Government and Minister for Justice with the aim to have the courts and judges under political control”.

55. Judge Gaciarek also addressed the question of the “nexus between the dismissal of the court presidents and the comment by the Deputy Minister of Justice concerning the person requested in this case”. In the same paragraph he also addressed the question of how “the removal [of] court presidents might have any effect on the trial of Mr Celmer if he was to be surrendered”. He said:-

“The statements by the Deputy Minister of Justice, Marcin Warchol, as quoted in the Report, should be perceived as a typical rhetoric of politicians currently in power, who build their position among voters based on illegitimate and unjust attacks on courts and judges. As a judge I do not see a direct effect of such statements or of the way of appointing court presidents on court rulings in this or other cases. One cannot, however, lose sight of the fact that under the provisions of Article 27 of the Law on the System of Common Courts, performance of his/her mandate by a president and vice-president of the court, is subject to an assessment by the Minister of Justice, who can dismiss them during their term of office, among others should one identify particularly low effectiveness in the field of administrative supervision or work organisation in a court or lower courts concerned.”

The judgment of the High Court which is under appeal

56. The High Court judge first addressed the question of the systemic deficiencies alleged.

She concluded, at para. 93 of her judgment, in Celmer (No. 5) that there was a “real risk connected with a lack of independence of the courts of Poland on account of systemic or generalised deficiencies there, of the fundamental right to a fair trial being breached”.

57. The judge then turned to the question of whether such deficiencies applied to the court at the level at which the appellant would be tried. She considered that there was evidence that, in at least 130 instances, the Polish Minister of Justice had exercised power to dismiss presidents and vice-presidents and that many of the newly appointed persons had connections with the Minister of Justice or with the executive branch of government. In the specific case of the Regional Courts in Wloclawek, Warsaw, and Poznan, which had issued the European arrest warrants at issue here, there had been changes. In the case of the Regional Court in Wloclawek, there had been a change on the basis of a discretionary decision of the Minister for Justice. In the other two courts, changes were made following the expiration of the mandates of former presidents. However, the vicepresidents of the Regional Court in Warsaw responsible for criminal, commercial and civil departments were changed before the expiration of their mandates. The High Court judge concluded that the deficiencies in the independence of the judiciary would affect the court level before which the appellant would be tried if surrendered. The final issue addressed by the court involved a specific and precise assessment of the appellant’s situation, and in particular, whether that situation amounted to a flagrant denial of justice.

58. In this regard, it should be said that the court first had to address the argument raised by the IHREC that the court was not required to find that the deficiencies amounted to a flagrant denial of his fundamental right to a fair trial. As the High Court observed, the discussion may not have been entirely necessary, as the appellant’s main submission was that, in light of the particular concerns as to independence, it was contended that the essence of the right had indeed been violated. The High Court referred with approval to the decision of the High Court of England and Wales in Lis v. Regional Court in Warsaw [2018] EWHC 2848 (Admin), [2018] All E.R. (D) 28 (Nov.) (“Lis. v. Regional Court in Warsaw”) in which that court had had to consider the impact of the ruling of the C.J.E.U.

in L.M. on the question of the surrender of individuals in response to European arrest warrants issued by the Polish courts, and in that case the Regional Court in Warsaw. It had been argued in that case that the outcome of the decision of the C.J.E.U. was to depart from the standard set by the E.Ct.H.R. of a requirement of a flagrant denial of justice, and to require merely a real risk of breach of a right. Lord Burnett of Maldon C.J.

for the Divisional Court of the High Court of England and Wales rejected that argument, concluding that “if the Luxembourg Court were seeking to draw a qualitative distinction between that concept and the oft-repeated formulation of the Strasbourg Court of a “flagrant denial of justice” it would have said so […]”. Donnelly J. concluded that the C.J.E.U. in L.M. did not amend the test of a flagrant denial of justice, but at the same time emphasised that the issue was not truly live in the case. From the outset, the appellant had posited his case on the lack of independence of the Polish judiciary, which, it was contended, amounted to a flagrant denial of justice. This had been maintained before the C.J.E.U. and in written submissions subject to the delivery of the decision on the referral. The High Court considered it was inconceivable that the C.J.E.U. was amending the well-settled test by implication. The High Court had, itself, posed its questions to the C.J.E.U. by referring to the test of flagrant denial. The appellant’s case was made by reference to that standard. Accordingly, the court considered that the references in the judgment of the C.J.E.U. to the “essence of the right” and the “flagrant denial of a right” were to be understood as essentially the same test.

59. The High Court noted that the appellant’s Polish experts confirmed that the Constitution and Code of Criminal Procedure in Poland provided guarantees of a fair trial. There had been no production of statistics, or even anecdotal evidence of trials lacking in fairness since the changes regarding the judiciary in Poland. Furthermore, Judge Gaciarek, upon whose report the respondent relied, had stated that he and other judges adjudicating in the Warsaw Regional Court “try to perform our obligations to the best of our abilities and administer justice impartially and free from any pressures”. Accordingly, the High Court concluded that the threshold for the refusal of surrender, that is, a real risk on substantial grounds that the essence of the fundamental right to a fair trial would be breached, was not reached on the basis of the systemic and generalised deficiencies in the independence of courts in Poland, where the totality of the evidence was taken into account.

60. Finally, however, the court turned to the question of the comments attributed to the Deputy Minister of Justice, which had not been qualified or denied. Those comments were very public, and could be said to violate the presumption of innocence of the accused. It was argued that this was of sufficient seriousness that, when combined with the generalised and systemic deficiencies already identified, the threshold was passed, and surrender should be refused.

61. The High Court considered that it was not in dispute that statements of public officials are not to be taken into account in decision making process in Poland, and only the facts and evidence collected and taken at the trial can be utilised in determining a case. It was stated by President Bitner that a person affected by the comments of a public official had remedies against such an official if necessary. It was notable, however, that the statements were made against the background of control over court presidents and, in particular, by the Minister of Justice. However, Judge Gaciarek had dismissed the statements and said that they should be “perceived as the typical rhetoric of politicians currently in power, who build their position among voters based on illegitimate and unjust attacks on courts and judges”. Accordingly, the High Court concluded that, despite concerns about the statements, which were heightened by the roles the Minister for Justice had in the prosecution of offences, and the control of court presidents and vicepresidents and in the disciplinary process, the making of the comments did not give rise to a real risk that the appellant would face a flagrant denial of his right to a fair trial on his surrender to Poland. Accordingly, the High Court said that the threshold of a real risk of flagrant denial of justice, or of breach of the essence of the right, had not been established and, accordingly, held that the court must order surrender on the three European arrest warrants.

The appeal to this court

62. On the 28th of November, 2018, (see [2018] IEHC 687) (“Celmer (No. 6)”), the High Court granted a certificate of leave to appeal to the Court of Appeal on the following question:-

“Is the decision of [the C.J.E.U.] in L.M. to be interpreted as meaning, where there are systemic and generalised deficiencies in the independence of the judiciary which affect the level of court in the Member State before which a person requested for surrender pursuant to a European arrest warrant will be tried in the event of being surrendered, that those deficiencies are sufficient, on their own [and in the absence of evidence of deficiencies in other safeguards for a fair trial], to establish substantial grounds that there is a real risk of a breach of the essence of the requested person’s right to a fair trial?”

63. Given the urgency of the matter, it was agreed by the parties that an application for leave to appeal to this court by way of “leapfrog” application should be made. By a determination of this court on the 20th of February, 2019, (see [2019] IESCDET 45), this court granted leave to appeal.

64. One further development may be noted. The High Court had noted that proceedings had been commenced in the C.J.E.U. by the Commission against Poland in which the Commission had sought a determination that the Republic of Poland was in breach of its obligations under Article 19(1) TEU and Article 47 of the C.F.R.E.U., both by lowering the retirement age for sitting judges of the Supreme Court and by providing for a discretionary extension of service. On the 24th of June, 2019, prior to the hearing of this appeal, the Grand Chamber delivered judgment in those proceedings: see Commission v.

Poland (Independence of the Supreme Court) (Case C-619/18) EU:C:2019:531 (“Commission v. Poland”). The court found that both of the impugned provisions were a breach of the Republic of Poland’s obligations under Article 19 TEU. At para. 58 of the judgment, the court observed that:-

“That requirement that courts be independent, which is inherent in the task of adjudication, forms part of the essence of the right to effective judicial protection and the fundamental right to a fair trial, which is of cardinal importance as a guarantee that all the rights which individuals derive from EU law will be protected and that the values common to the Member States set out in Article 2 TEU, in particular the value of the rule of law, will be safeguarded.”

65. In that regard, it may be noted that the C.J.E.U. cited its judgment in the reference in this case, L.M.

66. At the hearing of this appeal, the IHREC advanced a number of arguments in respect of the test to be applied, which were in turn adopted by the appellant. It was argued that the decision of the C.J.E.U. in this case was to be understood as rejecting the test of flagrant denial (or any similar test) adopted by the E.Ct.H.R., and that, instead, it was sufficient that it be demonstrated that there was a real risk of a breach of a right guaranteed by the Charter, and that the evidence in this case was sufficient to satisfy that test. It was also argued by the IHREC that it was permissible to adopt this interpretation of Article 47 C.F.R.E.U. and markedly depart from the jurisprudence of the E.Ct.H.R. in respect of Article 6 E.C.H.R. It was acknowledged that Article 47(2) and (3)

corresponded to the provisions of Article 6 of the E.C.H.R., but it was suggested that under Article 52(3) C.F.R.E.U. it was permissible to adopt a higher standard of protection.

67. Article 52(3) of the Charter provides that “[i]n so far as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection”. It is clear that Article 47(2) and (3) correspond to Article 6 E.C.H.R., save that the limitation in Article 6 E.C.H.R. to civil rights and obligations and criminal proceedings is not present in Article 47 C.F.E.U.: see the Explanations in Relation to the Charter of Fundamental Rights (2007/C 303/02).

However, it is argued, in reliance in part on certain observations made by Advocate General Sharpston in her Opinion in Ministerul Public v. Radu (Case-396/11)

EU:C:2012:648 (“Radu”) that it was permissible to interpret Article 47(2) and (3)

C.F.R.E.U. as setting a lower threshold (and therefore imposing a greater protection for rights) in reliance on the last sentence of Article 52(3) C.F.R.E.U.

68. At para. 80 of her Opinion in Radu, Advocate General Sharpston had said “[i]n considering the case-law of [the E.Ct.H.R.] it is always necessary to bear in mind that Article 52(3) of the Charter provides that it is open to Union law to provide more extensive protection than that laid down by the Convention”. In her Opinion, Advocate General Sharpston expressed difficulty in accepting the test that any breach in question should be “flagrant”, which appeared too nebulous a test to be interpreted consistently throughout the Union.

69. The IHREC, and subsequently the appellant, argued that it was therefore permissible, by interpretation of the Charter, to provide for a lower threshold and thus more extensive protection of the position of the individual: in this case, by the adoption of a test of a real risk of breach of a right guaranteed by the Charter.

The standard to be applied

70. Framed in the abstract, the proposition that it is possible to provide for more extensive protection of a right protected by the Charter might be thought to be an entirely positive development. But, apart from those rights deemed absolute, any guarantee of rights involves a balance. The assertion or expansion of any right involves correlative duties or expansion of duties imposed on institutions, countries, and, in some cases, individuals, and, by definition, an alteration of the balance adopted by the citizens of the European Union, whether directly by referendum, or by parliamentary approval. For my part, I would not be willing to accept the approach to the interpretation of the provisions of the Charter suggested by the appellant and IHREC without the clearest guidance from the C.J.E.U. that such an approach was required. While any observation of Advocate General Sharpston is worthy of the greatest respect and careful consideration, it is apparent that it was merely a general statement, and is, to that extent, unremarkable. The sentence quoted merely paraphrases the provisions of Article 52(3) C.F.R.E.U. Any suggestion, however, that Article 52(3) C.F.R.E.U. permits a more expansive interpretation of the Charter provisions than that applied to corresponding provisions of the E.C.H.R. would involve a paradoxical interpretation of Article 52(3) C.F.R.E.U. in which the last sentence would contradict the preceding one. Instead of a guarantee that the meaning and scope of corresponding provisions would be the “same”, the provision would have quite a different meaning: the Charter provisions could not provide a lower standard than corresponding E.C.H.R. provisions, but might be more extensive. “A floor, not a ceiling” is a well-recognised concept, and if that is how the drafters of the Charter wished the Member States and the people of Europe who adopted the Charter to understand what the scope of the Charter would be, it would have been simple to say so.

71. There, are no, doubt difficulties when two courts and systems are required to interpret different instruments with corresponding provisions and which, in the case of the Charter, are required to have the same meaning and scope. But there are obvious interpretative difficulties in accepting the reading of the terms of Article 52(3) C.F.R.E.U. proposed.

Moreover, such an interpretation would also give rise to considerable uncertainty.

Furthermore, any such interpretation would raise troubling questions, since the provisions of the Charter were adopted by the decision of the Member States, and, in the case of this jurisdiction, by a referendum of the people approving the Lisbon Treaty, and it does not seem either possible or appropriate to depart substantially from the apparent understanding of the terms of the Charter as approved.

72. Furthermore, it is clear that the provisions of Article 52(3) C.F.R.E.U. can be given a clear interpretation in accordance with their terms: Union law, in the shape of directives, regulations, or decisions, might impose higher standards in particular areas. That is no justification for contending that the Charter could itself be interpreted to achieve such an outcome. There are undoubted difficulties when autonomous courts approach the interpretation of apparently similar provisions intended to correspond. Some degree of ongoing difference, debate, and dialogue may be unavoidable but the process is intended to achieve a consensus and co-operation rather than to willingly create differences with consequent uncertainty and confusion for national courts.

73. However it is not necessary to determine that issue here, which might itself require a further reference to and clarification by the C.J.E.U. First, the issue raised here does not explicitly involve a question of the meaning or scope of the Charter right, and in this case Article 47. The meaning to be given to that right is not in dispute under the Charter or the E.C.H.R., nor is there debate as to the extent of the rights insomuch as they correspond. What is in issue here, is the extent to which the Charter or the E.C.H.R.

requires a court to refuse co-operation to the court of another country because of an anticipated breach of the rights or values guaranteed by the respective instrument. It is arguable that that test may apply differently in the context of the members of the European Union based on agreed fundamental values, and on a requirement of mutual trust and confidence. Second, it is notable that the argument advanced by the IHREC and the appellant goes much further than what was contemplated in the Opinion of Advocate General Sharpston in Radu. It was apparent that the issue being raised there concerned the clarity of the terminology. It was accepted, therefore, that the test for refusal of surrender “must be a rigorous one”, and it was suggested that in place of the language of “flagrant denial”, the courts should adopt a test as to whether the breach was “so fundamental as to amount to a complete denial or nullification of the right to a fair trial”, or that the deficiencies established were such as to “fundamentally destroy its fairness”.

This does not provide any support for the broader argument made by the IHREC and the appellant. Third, and in any event, the C.J.E.U., in its judgment in this present case, has set out the test to be applied by the national court in general, and the Irish courts in this case in particular: the court must consider whether any systemic deficiencies which are established apply at the level of the court requesting surrender and are such as in the individual case to compromise the essence of the right protected by Article 47. To that extent, the approach of the C.J.E.U. makes it clear that deficiencies as to judicial independence go to the essence of the right. This approach, at one and the same time, sidesteps the resolution of the theoretical issues just discussed and, more importantly, focusses attention on the second stage of the inquiry which is now critical and which, arguably, itself involves a two-stage test: whether the deficiencies identified are apparent at the level of the court requesting surrender and/or the court of trial, and as explicitly set out in para. 75 of the judgment, whether such deficiencies give rise to a real risk of breach in respect of the individual concerned and the particular case.

The “flagrant denial” test

74. Next, it was argued that it was clear that the Grand Chamber in L.M. had deliberately avoided use of the “flagrant denial” language which had, after all, been used conspicuously in the case up until then: first, in the judgment of the High Court and the question posed, and subsequently in the Opinion of Advocate General Tanchev. It was argued that the deliberate absence of such language indicated that the Grand Chamber did not accept a more rigorous test for refusal of surrender, and instead must be understood to be positing a less demanding standard: indeed, perhaps no more than the test of a real risk of a breach of a right protected by the Charter.

75. In Lis v. Regional Court in Warsaw, a divisional court of the High Court of England and Wales, having considered the decision of the Grand Chamber in L.M., rejected the contention that the court should adopt a lower standard (although not as low as suggested here) in line with the opinion of Advocate General Sharpston. As noted above, para. 63 of the judgment, the court observed that the CJEU in L.M.:-

“referred frequently in the course of its judgment to the potential breach of the “essence” of the applicant’s right to a fair trial [referring to paras. 59, 60, 68, 72, 73,75, and 78]. We are bound to observe that if the Luxembourg Court were seeking to draw a qualitative distinction between that concept and the oft-repeated formulation of the Strasbourg Court of a “flagrant denial of justice” it would have said so in answering question 2. In our judgment there is no sensible distinction to be made between a breach of the essence of a right to a fair trial and the flagrant denial test”.

Donnelly J. in the High Court here adopted the same approach.

76. I tend to take a somewhat different route, but which ultimately arrives at the same destination. It is clear from the judgment of the C.J.E.U. that a distinction is required to be drawn between a breach of the right and a breach of the essence of the right (although for reasons to be addressed later that distinction may not be significant in this case). This is also consistent with the structure of the Union and the relationship between the Member States and their courts, and the institutions of the Union and the C.J.E.U.

The TEU creates a mechanism (recognised by the Framework Decision) for the review of the general system of application of European Union law in the Member States, and sets out circumstances in which mutual co-operation may be suspended in respect of a Member State. On the other hand, the courts of a Member State have responsibility for the investigation and determination of breaches of rights and the remedy of such breaches in individual cases. A court of a Member State requested to execute a European arrest warrant is not required or permitted to duplicate the functions of either the Commission or the Council under Article 7, or, indeed, those of the C.J.E.U. in an infringement action. It is only when a threshold is reached and it is demonstrated that there is a real risk on substantial grounds of a breach of the essence of a right that the exceptional jurisdiction to refuse surrender arises. Breach of the essence of the right means that the breach should be a “particularly serious breach”, to adopt the neutral terms of para. 68 of the Advocate General’s Opinion, before the executing court is required to depart from the obligation of mutual trust, which normally carries with it a prohibition on checking the implementation of the Treaties (including the Charter) in any other Member State (emphasis in original).

77. This reasoning applies, if anything, with even greater force in this case. The structure of the Treaties establishing the European Union, and in particular Article 267 T.F.E.U., impose obligations of sincere co-operation between national courts and the C.J.E.U. The purpose of the procedure under Article 267 T.F.E.U., for example, is to allow a national court to decide a case brought before it in accordance with the law of the European Union, which incidentally has the effect of ensuring that the law of the European Union will be applied in a consistent fashion throughout the Union. The function of a national court is to identify the question of European law it considers is necessary to resolve in order to allow it to decide the case. The corresponding function of the C.J.E.U. is to answer that question and thereby provide guidance to all national courts, but importantly, to allow the national court in question to decide the particular case before it in accordance with European law. It is an exercise in practical co-operation, and not in semiotics, hints, or hidden signals. The judgment of the C.J.E.U. in an Article 267 T.F.E.U. reference is to be understood in the context of the procedure before the national court and the questions raised. As the trial judge observed, in particular, the standard to be applied was not a live issue in the proceedings before her at the time the reference was made. Accordingly, the C.J.E.U. was not requested to decide that issue or to make any observations on it.

78. It is clear that the C.J.E.U. did not employ the language of flagrant breach in its judgment, and it is reasonable to assume that this omission was advertent. It may be possible to deduce from the absence of any reference to the language of flagrant breach a doubt as to the precision of such language for use in national courts, or a concern that the emphasis on flagrancy might lead to an erroneous concentration on the manner rather than the nature of the breach, or, indeed, merely a desire not to express any definitive view on a linguistic and terminological issue which did not arise for determination in the proceedings before the Irish court. But, it cannot sensibly be read as an indication, sub silentio, of the adoption of a dramatically different standard, since that would be both to provoke uncertainty among national courts and to give rise to the very real possibility that the national court, unaware of the significance being attached to the change of language, would decide a case otherwise than in accordance with the law of the European Union and, moreover, in a way which diminished the protection of fundamental rights required to be protected by the Charter. If, therefore, there was a risk that the standard to be applied by the Irish court was not that required by European law, then it is to be expected that the court would have said so in clear terms. But, more importantly for the reasons already addressed, the debate is somewhat beside the point.

The decision of the C.J.E.U. makes it clear, that a breach of judicial independence is a breach of the essence of the right.

79. I agree fully with the High Court judge that, in truth, this issue cannot be said to have been live or in dispute in the case. Moreover, it seems to raise an issue that distracts attention from the guidance given by the C.J.E.U. for the resolution of this case, and risks leading to misunderstanding in future cases. That is because the C.J.E.U. made it clear that a breach of the right to an independent tribunal was itself, therefore, a breach of the right guaranteed by Article 47 C.F.R.E.U. to a fair trial before an independent and impartial tribunal. Thus, in para. 47 of the court’s decision, it is recorded that a court is required to determine if there is a real risk of a breach of an individual’s fundamental right to an independent tribunal and therefore of the right to a fair trial. Again, it was said at para. 48 of the judgment that “the requirement of judicial independence forms part of the essence of the fundamental right to a fair trial (emphasis added)” and, at para. 54, that “the independence of national courts […] is, in particular, essential to the proper working of the judicial cooperation system embodied by the preliminary ruling mechanism (emphasis added)”. The court repeatedly emphasised that the executing court must consider if the individual will suffer a breach of “his fundamental right to an independent tribunal and, therefore, of the essence of his fundamental right to a fair trial (emphasis added)”(paras. 59, 73, 75, and 78, and to similar effect, para 47).

Deficiencies may affect the independence of the judiciary “and thus […] compromise the essence of [the] fundamental right to a fair trial (emphasis added)”(para. 60).

80. The issue of a possible distinction between “flagrant breach” and “breach of the essence”

was raised for the first time when submissions were made after the judgment of the C.J.E.U. was received. The fundamental and consistent case made by the appellant at all times had been that the systemic changes in the administration of justice in Poland, whether on their own or in conjunction with the other matters referred to in this case, were such as to satisfy the threshold required, however expressed, so that surrender should be refused. The C.J.E.U. made it clear that findings of generalised or even systemic deficiency were not sufficient. It was also necessary to show that those deficiencies were present at the level of court from which the European arrest warrant had issued, and before which the individual would be tried or sentenced. But, even then, it was necessary to go further and show specifically and precisely that there are substantial grounds for believing that, following his surrender, the requested person will run that risk (of a breach of the right to an independent and impartial tribunal, and therefore of his right to a fair trial) in fact. The judgment proceeds on the basis that if the appellant were to be tried before a court that was not independent, that would be a breach of the essence of the right under Article 47, but what was required was not merely that the system in general be shown to have deficiencies, even serious ones, but specifically that the trial of the individual on the particular charge would not be a trial before an independent court. That could be because of the nature of the charge, the identity of the accused or the nature of the court It is necessary to turn to that issue now.

Decision on surrender

81. It should be said that the test posited in the judgment of the C.J.E.U. is not one that is easy to apply. Normally, it might be said that where systemic deficiencies of any kind are identified, it becomes unnecessary to identify the possibility of those deficiencies taking effect in an individual case. This is particularly so where the value concerns one that is essential to the functioning of the system of mutual trust. Indeed, it was this difficulty that led the trial judge to make the reference to the C.J.E.U. in the first place. It may also be questioned, at least in the abstract, whether once such systemic deficiencies have been found there is then room or need for further inquiry. It is not, however, for the national court to interrogate the logic of the reasoning of the C.J.E.U. This is a difficult and unprecedented situation where the C.J.E.U. has set out the steps to be taken by the national court. It is unmistakable that the national court is required to conduct the second step of the Aranyosi and Căldăraru analysis. It is also inescapable in the logic of the judgment of the C.J.E.U. that it is possible that there should be systemic deficiencies apparent at the level of the court before whom the individual is to be tried and, yet, for it to be determined that surrender should not be refused because it has not been established that those deficiencies will operate at the level of the individual case, having regard to the person charged, the offence with which he is charged, and the factual context which forms the basis of the European arrest warrant (para. 75 of the L.M.

judgment).

82. There are, perhaps, good reasons why this should be so. The problem posed for the European Union by systemic changes in a Member State, apparently inconsistent with fundamental values of the Union, is one which may require a co-operative and coherent response from all the institutions of the Union. The national court faced with a request for surrender is a court of the Union, but it is not intended to have the primary role in the enforcement of the fundamental values of the European Union in another Member State.

Refusal of surrender under the Framework Decision by one Member State can only be one part of the response of the European Union to issues concerning the rule of law in another Member State and why the national court may be required to focus precisely on the particular circumstances concerning the individual whose surrender is sought, and the offences for which they are sought to be tried.

83. The matters identified in the respective judgments of the High Court are substantial and grave issues which require careful consideration. Apart from the difficulties and discomfort involved in attempting to analyse the system in another Member State, there are significant difficulties in applying a test which requires not just a breach but a breach of such a degree as to reach a particular threshold. That necessarily involves a qualitative assessment and there is always a real risk that individual incremental breaches will not themselves be seen as sufficiently serious but could collectively amount to a gradual erosion and removal of the essence of a right required to be protected. While, here, it is clear that a finding that the tribunal in question lacks independence is a breach of the essence of the right, the judgment of the C.J.E.U. requires an inquiry which focuses on the individual case and seeks to draw connections between the systemic deficiencies identified and the particular case. This can arise because of the nature of the deficiency itself, or the particular charge, or the particular individual concerned. For this reason, the High Court sought further information in particular as to the impact of the legislative changes concerning the removal and replacement of court presidents at the regional court level.

84. In this case, the decision of the C.J.E.U. on the reference by the High Court and the subsequent decision in Commission v. Poland are both instructive. The obligation of trust and confidence is a basic requirement, and normally requires surrender and prohibits any exercise by national courts in the checking or assessment of the legal system of another Member State. Exceptionally, however, an executing court may be required to consider if there has been a breach of the essence of a right or a flagrant denial of the right of such a degree as to require that court to refuse to surrender. Such an exception must be interpreted strictly. The independence of a court is an important component of any fair trial. Moreover, it has both external and internal aspects. Independence is necessary for impartiality in the particular dispute, but it is not limited to that. It involves independence from outside bodies or, indeed, internal hierarchical structures. This aspect of independence is plainly in issue in this case. The independence of a court is of the essence of the right to a fair trial. All of this emphasises the significance of any finding of a breach of independence even at a general level.

85. I would tend to agree with the trial judge that the possibility that systemic deficiencies in a particular system could, by themselves, amount to a sufficient breach of the essence of the right to a fair trial, requiring an executing authority to refuse surrender, cannot and should not be ruled out in the abstract. That could occur, for example, where the deficiency identified at a systemic level is so far-reaching and pervasive as it would plainly and unavoidably take effect in the requesting court, and on any individual trial on a particular charge. However, I also agree with the trial judge that it is clear from the judgment of the C.J.E.U., that the systemic changes in Poland, while undoubtedly both serious and grave, cannot themselves be seen as sufficient to reach that point in this case. This follows from the fact that the changes referred to in the reasoned proposal apply in different ways at different levels of the Polish courts system and the C.J.E.U., being fully apprised of the relevant changes, considered that the referring court was nevertheless obliged to consider whether the identified deficiencies reached the level of the court before which the person would be tried, and, furthermore, was obliged to conduct a specific and precise evaluation of the individual case. Here, further information about the operation of the changes at regional court level was forthcoming and indicated that presidents and vice-presidents had been dismissed in at least 130 cases, one of which was the regional Court of Wloclawek, which was itself one of the requesting courts in this case. However, there was no evidence, even anecdotal, suggesting such changes had affected the hearing or determination of charges generally or, more specifically, charges such as those involved in this case. Furthermore, there was no evidence of the impact of any of the criticised changes upon trials conducted in any of the three regional courts involved. It appears, therefore, that although there was clear evidence of breach of Poland’s Charter and Treaty obligations (as indeed the C.J.E.U. found in Commission v.

Poland) and further evidence leading the trial judge to conclude that a breach of the principle of independence did operate at the level of the courts involved, the available evidence did not, on its own, satisfy the third stage of the test set out by the C.J.E.U. of requiring a real risk that the impact of the legislative changes would mean that this appellant would be tried before a court that was not independent and would therefore suffer a breach of the essence of his right to a fair trial.

86. In this case, however, there are significant additional factors which must be considered.

These principally concern the fact that some of the systemic deficiencies identified concern the power of the Minister of Justice in relation to the court system. In addition to this, there are the clear statements made by the Deputy Minister of Justice about the appellant. These statements, in themselves, are matters which would give rise to considerable concern in their own terms. In a common law system such as that which operates in this jurisdiction, when trials of serious offences are conducted with a jury of lay persons, such comments would probably give rise to application to stay the trial for a lengthy period, if not indeed permanently, because of the risk to a fair trial. It is not suggested, however, that the appellant here would be tried, if surrendered, before a jury which might be affected by hostile commentary. In that regard, it is significant that Judge Gaciarek, in particular, discounts the statements as little more than the type of statement made by a politician. On the other hand, they are statements made by a Deputy Minister in a department which itself has acquired considerable power in relation to judges as a result of the changes complained of. Furthermore, these are statements concerning the precise individual case, and thus have the effect of raising this case out of the general run of cases in which allegations of criminal conduct are made. In this regard, it is noteworthy that one of the factors considered relevant by the European Commission, and accepted by Advocate General Tanchev, was the making of statements by “the powers that be”.

87. Ultimately, however, I have come to the conclusion that the trial judge was correct to conclude that this threshold had not been reached. Like her, I must give considerable weight to the observations of Judge Gaciarek whose comments are themselves an impressive exercise in judicial independence. While raising serious concerns about the systemic changes effected in Poland in recent years, he discounts the impact of any such statement made in the resolution of litigation in the Polish courts, and in particular the courts in his jurisdiction. Furthermore, he also discounts any possible impact of the changes at the level of president or vice president upon such a trial. The power to refuse to execute a European arrest warrant is an exceptional one which must be strictly construed. While, therefore, the matters set out in the Reasoned Proposal and the

decision in Commission v. Poland and elaborated upon in the report received by the High Court from the Polish lawyers are undoubtedly extremely serious, the approach of the C.J.E.U. means that they cannot of themselves be considered sufficient in this case to require the court to refuse to execute the warrant without a specific finding that the appellant would run a real risk of trial before a court that was not independent and therefore of a breach of his fair trial rights. Again, while the individual features of this case are undoubtedly troubling, I agree with the trial judge that, in the light of the evidence, they do not bring the case over the threshold. On the evidence adduced, the statements made cannot lead to the requisite finding on an individual basis that there is a real risk that that the appellant will suffer a breach of the essence of his right to a fair trial. It is, however, necessary to observe that no court, in any jurisdiction, operating under an obligation of impartiality and independence and obliged to refrain from involvement in public controversies, should be subjected to irresponsible or abusive commentary from governmental or official sources. This is particularly so where the court which is the subject of the commentary is considering the effect of changes to a judicial system which are alleged to make the judicial system subordinate to and subject to the influence of the executive and the legislature.

88. It is of the essence of the test which the national court is required to apply that once there has been a claim of a generalised or systemic breach of independence, there must nevertheless be an individual, specific and precise determination of whether that, in the particular case, on its own or in conjunction with other factors, amounts to a breach of the essence of the right to a fair trial. The dangers of relativism already adverted to suggest that it is desirable to indicate what matters could be taken into account which might lead to a conclusion that surrender in respect of a European arrest warrant from a Polish court should be refused. Among the matters to which weight may properly be given, and which might affect that determination, are: whether further changes are made to the structure of the administration of justice in Poland affecting the court of trial; the manner in which the reasoned proposal in accordance with Article 7(1) TEU may proceed before the Council; the response of the Republic of Poland to that proposal and indeed to decisions such as that in the recent case of Commission v. Poland. A court would be entitled to have regard to any evidence of the practical impact of the legislative changes already made on court hearings and decisions in Poland at the trial level, and any evidence in relation to trials of particular classes of offence or defendants. It must also be recalled that, under para. 78 of the judgment of the C.J.E.U., when a court is required to consider the impact of systemic changes on the individual sought for trial on particular charges, a court is obliged to refuse surrender (“must refrain”), when the information does not “lead [the court] to discount the existence of a real risk that the individual concerned will suffer in the issuing Member State a breach of his fundamental right to an independent tribunal and, therefore, of the essence of his fundamental right to a fair trial”. In that regard, the progress of this particular case, which has attracted such attention, may itself be instructive. However, on the evidence currently before the court, and applying the approach of the C.J.E.U., I conclude that the trial judge was correct in her determination, and I would accordingly dismiss the appeal.