Article 47 - Right to an effective remedy and to a fair trial
Key facts of the case:
The two applicants appealed extradition to Poland arguing that it would violate their rights to a fair trial and effective remedy under 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 Orlowski and Lyszkiewicz, the appellants argued 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. The Irish Supreme Court referred this matter to the CJEU in 2021 [as reported in last year’s FRR report].
The CJEU have this year given their reasoned order, effectively saying that if the applicants cannot determine in advance whether there is a real risk of breach to the fundamental risk of a fair trial, then they must be surrendered. For the Irish Supreme Court, this ‘places the appellants in something of a ‘Catch 22’ position’ as until they are surrendered, they will not know the identity of the judges appointed to them, and whether those judges are appointed in accordance with the law. The Court therefore concluded that: ‘despite the concerns of this Court in relation to issues as to the rule of law in Poland, it seems that there is no alternative at this stage but to direct the surrender of the appellants to the issuing state.’
Key legal question raised by the Court:
The key legal question which was put to the CJEU 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.’
Outcome of the case:
The CJEU, in their opinion, maintained that the (undisputed) existence of systemic deficiencies in the Polish system was not sufficient to refuse surrender; that the applicants need to prove specifically that they are at real risk of an unfair trial. Despite their evident discomfort with this line of reasoning, the Irish Supreme Court had no choice but to apply the test and thus surrender the applicants.
5. Thus, it was pointed out that it was for the executing judicial authority to assess whether there are in the particular case substantial grounds for believing that the applicant, once surrendered to the issuing Member State will run a real risk of breach of their fundamental right to a fair trial before a tribunal previously established by law, enshrined in the second paragraph of Article 47 of the Charter (see paragraph 47). The CJEU went on to point out that it was for the referring court rather than the CJEU to assess whether the evidence relied on is capable of revealing a ground justifying a refusal to execute the European arrest warrants at issue. However, it pointed out that refusal to execute is intended to be an exception which must be interpreted strictly (see para. 48).