Article 47 - Right to an effective remedy and to a fair trial
Key facts of the case:
The two applicants are appealing their extradition to Poland under several European Arrest Warrants (EAW), arguing that it would violate their rights to a fair trial and effective remedy under Articles 6 and 13 of the ECHR and Article 47 of the Charter.
Ireland referred a similar case to the CJEU in 2018 (C-216/18PPU- the LM/Celmer case), and it was decided that Member States should undertake a two-step analysis when a respondent seeks to resist surrender on those grounds. First, the court should identify generalised and systemic deficiencies in Member States that give rise to a breach of rights under the ECHR or Charter. Second, the Court must identify a real risk to the respondent concerned that the rights will be breached. Following the CJEU judgment, the Irish Supreme Court reconsidered Mr Celmer’s case, and found that, while the first ground was held to be true, there was no evidence of the second, and his extradition was therefore ordered. In Ireland, a significant proportion of cases citing the Charter have addressed European Arrest Warrants in various countries, but none to date have succeeded in overturning an extradition.
In Orlowski and Lyszkiewicz, the appellants argue that the situation in Poland has deteriorated since the Celmer case. Specifically, they argue that the Act on the System of Common Courts (February 2020) allows appointment of judges in conflict with the rule of law, and the legislation explicitly outlaws the challenging of those appointments, in contravention of the right to an effective remedy.
Key legal question raised by the Court:
The key legal question is whether the ‘systemic deficiencies in the Polish system are such that they, by themselves, amount to a sufficient breach of the essence of the right to a fair trial, requiring the executing authority, in this case, Ireland, to refuse surrender.’ In other words, at what point does the two-step test set out in Celmer become invalid, because the deficiencies in the Polish system are such that any trial could be potentially unfair, and that there is no recourse to an effective remedy should the appellants be subject to an unfair trial.
Outcome of the case:
The judge acknowledged that: ‘the systemic deficiencies apparent in the rule of law in Poland previously identified in this jurisdiction […] are now even more troubling and of deeper concern following the introduction of new laws’ (paragraph 55). In light of the new laws, the court pointed out a number of difficulties with regard to applying the two-step Celmer test. Firstly, since judges are drawn at random for dealing with their respective cases, they have no way of knowing in advance whether the judge who hears their case will or will not have been appointed in a manner not in accordance with the rule of law, as is possible under the new provisions. Secondly, if the appellants should be returned to Poland, and find they have grounds to question whether any judge assigned to their case was not validly appointment, they are ‘left completely without remedy’. (paragraph 54)
“The Court therefore proposed to request a ruling from the CJEU on the following three questions:
(1) Is it appropriate to apply the test set out in LM and affirmed in L and P [Joined Cases C-354/20 PPU and C-412/20 PPU, L&P] where there is a real risk that the appellants will stand trial before courts which are not established by law?
(2) Is it appropriate to apply the test set out in LM/Celmer and affirmed in L and P where a person seeking to challenge a request under an EAW cannot by reason of the fact that it is not possible at that point in time to establish the composition of the courts before which they will be tried by reason of the manner in which cases are randomly allocated?
(3) Does the absence of an effective remedy to challenge the validity of the appointment of judges in Poland, in circumstances where it is apparent that the appellants cannot at this point in time establish that the courts before which they will be tried will be composed of judges not validly appointed, amount to a breach of the essence of the right to a fair trial requiring the executing state to refuse the surrender of the appellants?” (paragraph 60)
The extradition of both men will therefore be stayed pending the decision of the CJEU.
2) The judgment of this Court in Celmer v. Minister for Justice and Equality  IESC 80 engaged with the challenges faced by Member States when an objection is raised pursuant to s. 37 of the European Arrest Warrant Act 2003 that ordering the surrender of a respondent who is the subject of an EAW would potentially lead to a violation of their rights under the European Convention of Human Rights (“ECHR”) or the Charter of Fundamental Rights of the European Union (“the Charter”). In Celmer, following a reference to the Court of Justice, it was decided that Member State courts were required to undertake a two-step analysis when a respondent seeks to resist surrender on the suggestion that there is a risk of violation of their rights pursuant to EU law: firstly, the court should identify whether generalised and systemic deficiencies exist in the requesting Member State that give rise to a breach of rights under the ECHR or the Charter, and secondly, the Court must identify a real risk on substantial grounds that the essence of the fundamental right will be breached. (see Minister for Justice and Equality (Deficiencies in the system of justice) Case C-216/18 PPU, ECLI:EU:C:2018:586, “LM” herein, as Celmer was identified in the CJEU). This test was applied by this Court in Celmer and more recently, affirmed by the CJEU in Joined Cases C-354/20 PPU and C-412/20 PPU, L&P, ECLI:EU:C:2020:1033, “L and P” herein)…
6) In the High Court, the appellants argued that the new laws passed in Poland have given rise to concerns that judges have been or may be appointed otherwise than in accordance with law and further, that the validity of these appointments cannot be challenged. They submitted that this position gives rise to a breach of the appellants’ right to a fair trial and their right to an effective remedy under Arts. 6 and 13 of the ECHR, and Art. 47 of the Charter. The particular provision giving rise to these concerns is Article 42a of the new laws, which provides:
“Within the framework of the activity of courts or organs of courts, it is unacceptable to question the powers of courts and tribunals, constitutional state bodies and law enforcements and control bodies.”
In support of this objection, the appellants furnished evidence as to a number of sources expressing concern about the impact that Article 42a would have on the rule of law, including the Venice Commission, The Polish Commissioner for Human Rights, and provided expert evidence from Ms. Katarzyna Dąbrowska, a Polish lawyer. The principal concern of the appellants is that they are, in practical terms, deprived of the right to challenge the validity of the appointment of a judge by virtue of the provisions of Article 26 of the new laws which provides as follows:
“(2) The competence of the Extraordinary Chamber of Control and Public Affairs includes consideration of motions or statements concerning the exclusion of a judge or the designation of the court before which the proceedings are to be conducted, including the allegation of lack of independence of the court or lack of impartiality of the judge. The court examining the case shall immediately forward the motion to the President of the Chamber of Extraordinary Control and Public Affairs in order to give it further course of action under the rules specified in separate regulations. The submission of the motion to the President of the Chamber of Extraordinary Control and Public Affairs does not stop the ongoing proceedings.
(3) The motion referred to in paragraph 2 shall be left unprocessed if it involves determining and assessing the legality of the appointment of a judge or his authority to perform judicial tasks.”
Binchy J. found that taking Article 26 of the new laws together with the expert evidence of Ms. Dąbowska, a motion challenging the validity of a judge’s appointment will not be heard in Poland, even if a party can issue such a motion.
13) Article 2 TEU provides:
“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.”
Article 19(1) TEU states:
“The Court of Justice of the European Union shall include the Court of Justice, the General Court and specialised courts. It shall ensure that in the interpretation and application of the Treaties the law is observed.
Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law.”
Article 47 of the Charter states:
“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.”
15) The appellants’ central argument is that the decision in LM, which set out a two-step approach as to whether a rule of law objection to surrender should succeed, does not apply to the facts of this case, on the basis that it was concerned only with questions of independence of the judiciary, which they say is a distinct consideration from whether a court is one that is established by law. They make the point that if the court in Poland is not established in accordance with law, then, the requested person will have no effective remedy. In this case, the concern relates not to independence but the legality of the court. Therefore, they say that it is only if the court is established in accordance with law that the question of independence of the court arises. The appellants say that there is a real risk that any court before which they will appear will not be established by law by virtue of the new laws in Poland and other changes brought in since 2015, contrary to the requirements under Article 47 of the Charter and Arts. 6 and 13 of the ECHR. In those circumstances, they will have no effective remedy as required by the ECHR and the Charter. The appellants say that the decision in LM concerned questions pertaining to independence, whereas in this case, there is an identifiable, fundamental right i.e. the right to an effective remedy, which has been removed from the appellants as a result of recent legislative changes in Poland. The appellants argue that this distinction is significant, as the right to an effective remedy is less subjective than the question of independence and therefore less referable to factors personal to the requested person.
16) The respondent argues that the appellants seek a radical departure from the settled principle that a party must show that their specific and precise circumstances create a real risk of a breach of a Convention and/or Charter right. She says that the appellants proffer no reason as to why the right to an effective remedy should be treated any differently than any other Convention right, and that the jurisprudence of the Court of Justice and the ECtHR has consistently adopted the approach that there must be a real risk of a breach of a right to the requested person in relation to the right not to be subject to degrading and/or inhuman treatment (Aranyosi and Căldăraru Joined Cases C-404/15 and C-659/15 PPU ECLI:EU:C:2016:198, Saadi v. Italy Application No 37201/06  49 E.H.R.R. 30), or there must be a real risk of a breach of the essence of a right to a fair trial (LM, supra; L and P, supra). The respondent submits that there is no basis for the suggestion that the same test should not apply in respect of the right to an effective remedy. They rely on Minister for Justice v. Brennan  3 I.R. 732 in stating that the principle that a party must show a nexus between the breach of the right and their own specific circumstances is also a principle of domestic law. The matter complained of must impact on the person whose surrender is sought. It is further noted that to require a party to show individualised risk where they claim a potential breach to their right to be free from degrading and inhuman treatment but not require the same individualised risk where there is a potential breach of the right to an effective remedy would be anomalous.
19) The appellants say that the principle of “effective judicial protection” at issue in Article 19(1) TEU has a relationship with Arts. 6 and 13 ECHR and Art. 47 of the Charter so that while the organisation of justice is a matter in which Member States have competence, Member States must comply with EU law, including Article 19(1) TEU. The appellants cite European Commission v. Poland (Independence of the ordinary courts) Case C-192/18 ECLI:EU: C:2019:924 as authority for this proposition. The appellants also argue that the CJEU have recognised that Art. 47 includes the right to invoke a breach of the right to a fair trial and that Courts must be able to scrutinise irregularities in the appointment of judges, and to this end they rely on HG & Simpson Joined Cases C-542/18 RX-II and C543/18 RX-II ECLI:EU:C:2020:232. The appellants say that the decision in Simpson provides a mandate for domestic Member State courts to review any irregularity in relation to the appointment of judges in order to satisfy compliance with Art. 47. The appellants further rely on Ástráðsson v. Iceland in maintaining that, even when a review mechanism is provided, the quality of the review is of importance. In that case, the ECtHR found that the review of the irregularities in appointment was deficient in that it failed to consider the question of whether the court was established by law. The respondent argues that the right to an effective remedy can only arise where there is first established some other right or entitlement which the claimant alleges has been breached or is likely to be breached having regard to the specifics of this case and which therefore requires a remedy. The ECtHR has confirmed on a number of occasions that the right to an effective remedy has no independent existence. It merely complements the other effective clauses of the Convention and its protocols. Similarly, the CJEU has held in relation to the right to an effective remedy set out in the first paragraph of Article 47 that “… the recognition of that right, in a given case, presupposes, as is apparent from the first paragraph of Article 47 of the Charter, that the person invoking that right is relying on rights or freedoms guaranteed by EU law.” (A.B. Case C-824/18 at para 88). The respondent argues that there is no basis in principle, and none in domestic case law or that of the CJEU the ECtHR, to suggest that the right to an effective remedy has some elevated status such that generalised deficiencies in the remedies available in a requesting State would result automatically in a refusal to surrender…
21) Fundamentally, the appellants submit that a consideration of whether a court is established in accordance with law precedes any consideration of independence; in other words, the first step is the question of whether the court concerned is one established by law. Essentially it is contended that the question of whether the court before which the appellants will stand trial is established by law is a separate complaint to that determined by the CJEU in LM and confirmed recently in L and P. If it does not meet the criteria of Article 6 ECHR and Article 47 of the Charter, the examination of the Court comes to an end as there is nothing further to examine. In other words, if the court is not established by law then the question of independence or impartiality does not arise. In those circumstances it is contended that the High Court does not have to consider the personal situation, the nature of the offence in question and the factual context in which the relevant warrant was issued as such matters are external to the primary question of establishment. In these circumstances, the appellants contend that a reference to the CJEU is necessary to determine the applicable test. The respondent says that the distinction between independence and establishment is artificial where both the right to be heard in front of a tribunal established by law, and the right to be heard by an independent and impartial court, are different aspects of the same right pursuant to Article 47 of the Charter and that to apply two different tests to two parts of the same right would be contrived. It is said that this distinction has never been noticed by any court in the past. The right to an independent tribunal and one established by law are part of the same fundamental right. That this is so has been recognised in the past. (HG & Simpson). Further, it was observed that the CJEU has explained that the objective of the requirement that tribunals be established by law “is to guarantee the independence of judicial power with respect of the executive” (FV v. Council of the European Union, Case T-639/16P). The respondent argues that the discussion of the distinction between independence and establishment in Ástráðsson needs to be contextualised. While the Court made a distinction between impartiality and independence in that case, bearing in mind that it was common case that the appointment of a judge to the Icelandic court of appeal was irregular under domestic law, the ECtHR went on to examine whether the irregularity had any impact on the applicant. The Court in that case at paragraph 285 held:
“In the Court’s opinion, the requisite “proximity” between the irregularities at issue and the applicant’s case was attained when, and only when, the irregularly appointed judge, A.E., sat on the bench of the Court of Appeal which heard his case.”
25) In order to put the issues in this case in context, it is necessary to consider the evidence before the High Court from Ms. Dąbrowska, a Polish lawyer, who provided a number of reports on behalf of the appellants. Reliance was also placed on a number of documents put before the High Court, including an opinion on the new laws delivered by the Polish Commissioner for Human Rights, reports from the Organisation for Security & Cooperation in Europe (the OSCE), and a report of the Venice Commission of the 30th December, 2019. In her reports, Ms. Dąbrowska referred to the resolution of the Supreme Court of Poland of the 23rd January, 2020, and in her second report, in particular, she highlighted the conflict between that court and the Constitutional Tribunal of Poland on the new laws. The Supreme Court in its resolution stated, inter alia, at para. 2, as follows:
“A court formation is unduly appointed within the meaning of Article 439(1)(2) of the Code of Criminal Procedure or a court formation is unlawful within the meaning of Article 379(4) of the Code of Civil Procedure also where the court formation includes a person appointed to the office of a judge of a common court or a military court on application of the National Council for the Judiciary formed in accordance with the Act of December 2017 amending the Act on the National Council for the Judiciary and certain other Acts … if the defective appointment causes, under specific circumstances, a breach of the standards of independence within the meaning of Article 45(1) of the Constitution of the Republic of Poland, Article 47 of the Charter of Fundamental Rights of the European Union and Article 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms.”
27) However, as we have seen, there is a conflict between the Supreme Court and the Constitutional Tribunal, and as Ms. Dąbrowska noted “it is impossible to define how this judgment should be treated. The doctrine indicates that the actions of the Constitutional Tribunal are devoid of legal force, because they interfere with the implementation of EU law in Poland and as such must be ignored by the organs of the judiciary. The practice, however, is unknown at the moment”. Further, Ms. Dąbrowska agreed with the proposition drawn from reports of bodies such as the Venice Commission and the report of the Polish Commissioner for Human Rights and the OSCE that it would appear from the new Articles that they preclude the right to challenge a court and thereby raise issues under Article 6 and 13 of the ECHR, and Article 47 of the Charter. Having said that, as Binchy J. noted in para. 106 of his judgment in Orlowski, she further stated that she has no knowledge of any irregularities in the appointment of judges to the common courts, apart from the fact that changes have occurred in the composition of the National Council for the Judiciary, the body which nominates judges for appointment, although she noted reports of three judges who were removed from a delegation to a court. As he observed, Ms. Dąbrowska also stated that “no intentional interference has been proven so far” in the random process involving the selection of judges to hear individual cases. Nevertheless, she also noted that, according to press releases, the Minister for Justice had removed from office 66 presidents, and 63 vice presidents of common courts.
29) His [Commissioner for Human Rights in Poland] conclusion, in para. 13 of his report, was equally stark. He said that:
“An analysis of the content of its provisions leads to an unequivocal conclusion that the real purpose of the regulation is not, in fact, to “organize systemic issues related to the status of a justice of the Supreme Court, ordinary, military, and administrative courts, as well as judicial self-government bodies and court authorities”, as it is declared in the explanatory memorandum of the bill, but solving the immediate obstacles that have appeared in the jurisprudence of the Polish and European courts on the basis of the existing regulations and that prevent or hinder the implementation of political intentions which are contrary to the Constitution of the Republic of Poland, the European Convention on Human Rights and the law of the European Union.”
“Particular concerns … relate to the consequences for the protection of civic rights that would result from the Act’s entry into force in the wording adopted by the Sejm. Preventing implementation of the judgment of the Court of Justice of 19 November 2019 will in fact constitute a refusal to carry out in loyalty the obligations arising from membership of the European Union … including, in particular, a refusal to ensure effective judicial protection of citizens’ rights stemming from Article 19(1)(2) of the Treaty on the Functioning of the European Union and Article 47 of the Charter of Fundamental Rights of the EU. At the same time, it will constitute a blatant violation of the Constitution of the Republic of Poland due to the disregard of its provisions which assume respect for international law, by which the Republic of Poland has chosen to be bound.”
32) Again, the Venice Commission has commented on the new laws, and in particular the question of whether the Chamber of Extraordinary Control & Public Affairs should have the ability/power to assess the independence of judges or courts, including itself and the Disciplinary Chamber. They commented on Article 55(4) and expressed the view that it was contrary to Article 6(1) of the ECHR and Article 47 of the Charter, saying, at para. 41, as follows:
“In addition, new Article 55 (4) is contrary to the principle of a lawful judge (enshrined in to Article 6(1) of the ECHR and Article 47 of the Charter): it will be henceforth impossible to challenge a judge on the ground that the case has been allocated to him/her unlawfully and/or arbitrarily, or that the rules on territorial and substantive jurisdiction were breached. This provision may lead to abusive redistribution of cases to “loyal” judges. Such arbitrary allocation of cases is further facilitated by new provisions on the distribution of work-load in the courts which would increase the discretion of the court presidents (see, for example, new Article 22a, and new Article 37e, paragraph 2), and the new rule de facto permitting allocation of cases to a judge from another district court (see new Article 77, paragraph 9a, which permits to delegate a judge of the district court to another court “simultaneously with performing duties in his official place” of work, i.e. in the district where this judge normally works).”
39. For completeness, I would like to refer this stage to a passage from the Resolution of the Supreme Court of Poland referred to previously. At paragraph 59 of the resolution the Supreme Court stated: “The current instability of the Polish judiciary originates from the changes to the court system over the past years, which are in breach of the standards laid down in the Constitution, the EU Treaty, the Charter of Fundamental Rights, and the European Convention of Human Rights. The leitmotif of the change was to subordinate judges and courts to political authorities and to replace judges of different courts, including the Supreme Court. That affected the appointment procedure of judges and the bodies participating in the procedure, as well as the system for the promotion and disciplining of judges. In particular, a manifestly unconstitutional attempt was made to remove some judges of the Supreme Court and to terminate the mandate of the First President of the Supreme Court, contesting the legitimacy of the Supreme Court. The systemic changes caused doubts about the adjudicating legitimacy of judges appointed to the office in the new procedures. The political motivation of the changes jeopardised the objective conditions necessary for courts and judges to be perceived as impartial and independent. The Supreme Court considers that the politicisation of courts and their subordination to the parliamentary majority in breach of constitutional procedures establishes a permanent system where the legitimacy of individual judges and their judgements may be challenged with every new political authority. That notwithstanding, the politicisation of courts departs from the criteria of independence and impartiality of courts required under Union law and international law, in particular Article 47 of the Charter and Article 6(1) ECHR. That, in turn, causes uncertainty about the recognition of judgments of Polish courts in the Union space of freedom, justice and security. Even now courts in certain EU Member States refuse to co-operate, invoking violation of the standards, and challenge judgments of Polish courts."
50) [quoting FV v. Council of the European Union Case T-639/16 P, para 69] In that context, it should be recalled that, under the first sentence of Article 52(3) of the Charter of Fundamental Rights, in so far as the Charter contains rights which correspond to rights guaranteed by the Convention the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘the ECHR’), their meaning and scope are to be the same as those laid down by that convention.”
53) For completeness, I should refer also to the case of HG & Simpson Joined cases C-542/18 RX II and C-543/18 RXII in which it was said:
“55. However, it follows from the fundamental right to an effective remedy before an independent and impartial tribunal previously established by law, guaranteed by Article 47 of the Charter, that everyone must, in principle, have the possibility of invoking an infringement of that right. Accordingly the Courts of the European Union must be able to check whether an irregularity vitiating the appointment procedure at issue could lead to an infringement of that fundamental right.
The Court continued at para. 75:
“It follows from the case-law cited in paragraph 71 and 73 of the present judgement that an irregularity committed during the appointment of judges within the judicial system concerned entails an infringement of the first sentence of the second paragraph of Article 47 of the Charter, particularly when that irregularity is of such a kind and of such gravity as to create a real risk that other branches of the State, in particular the executive, could exercise undue discretion undermining the integrity of the outcome of the appointment process and thus give rise to a reasonable doubt in the minds of individuals as to the independence and impartiality of the judge or judges concerned, which is the case when what is at issue are fundamental rules forming an integral part of the establishment and functioning of that judicial system.”
55) The systemic deficiencies apparent in the rule of law in Poland previously identified in this jurisdiction in the Celmer case in its various iterations and in the jurisprudence of the CJEU in cases such as LM and more recently in L and P are now even more troubling and of deeper concern following the introduction of the new laws. The Supreme Court of Poland in its Resolution of the 23rd January 2020 has said that a Court formation “is unduly appointed” where the court formation includes a person appointed to the office of a judge of a common court (and other courts) on application of the National Council for the Judiciary formed in accordance with the Act of 8th December 2017 and certain other Acts, if the defective appointment causes, under specific circumstances, a breach of the standards of independence within the meaning of the Constitution of Poland, Article 47 of the Charter and Article 6 (1) of the EHCR.(See Resolution No. 2). It is hard to imagine a more severe condemnation of the system of appointment of judges from a country’s Supreme Court.