United Kingdom / High Court of Justice - Queen's Bench Division - Administrative Court / [2018] EWHC 2848 (Admin) - Case ID: CO/6151/2016, CO/4738/2017 and CO/4398/2017 Lis, Lancet and Chemielewski v. Regional Court in Warsaw and others

Key facts of the case:

The Court examined the applications for permission to appeal of three Polish nationals subject to European Arrest Warrants [EAW] in the UK. The issue for determination was whether the recent developments which affected Poland’s judicial system were such that applicants subject to EAW issued by Polish judicial authorities should be discharged and protected from extradition. Applicants submitted that if they were returned to Poland, they would be at risk of breaches to their right to a fair trial protected under Article 6 of the ECHR. Further, the second applicant stressed that if extradited to Poland, his sentence could be recalculated following a sentencing hearing. He submitted that such hearings fell within the scope of Article 6 ECHR and Articles 47 and 48 of the Charter. Finally, prospective detention might also engage Article 5 ECHR and Article 6 of the Charter.

The High Court of Justice mentioned a similar case brought before Donnelly J in the High Court of Dublin, Ireland. Donnelly J had referred two questions to the Luxembourg Court:

  • Whether, when there is evidence of conditions incompatible with fundamental rights in the issuing Member State, national courts are expected to make any further specific assessment as to the exposure of the individual?
  • If the test to be applied requires a specific assessment of the requested person’s real risk of flagrant denial of justice, is the national court obliged to go back to the issuing judicial authority for any further necessary information?

The Luxembourg Court decided that the first task of a court was indeed to determine whether there was a “real risk of breach of the fundamental right of the individual concerned to an independent tribunal”. The Luxembourg Court stated that the right to a fair trial was guaranteed by Article 47 of the EU Charter of Fundamental Rights and that executing judicial authorities were required to assess whether there was a real risk that the individual concerned would suffer a breach of this fundamental right. 

Key legal question raised by the Court:

The High Court of Justice examined the claimants’ following submissions: one the one hand, the Court can decide that refusal of extradition must be founded not merely on technical breaches of Article 6 of the ECHR but instead require a “flagrant denial” of fair trial rights. On the other hand, should the Court decide that there is no “flagrant violation” of fair trial rights in Poland, the applicants submitted that they could still invoke Articles 47 and 48 of the EU Charter, which do not provide for a “threshold standard of ‘flagrancy’”.

Outcome of the case:

The respondent submitted that the Luxembourg Court had never ruled that a “flagrancy test” did not apply to Article 47, nor had it adopted a different test. The High Court of Justice accepted the respondent’s submission.

It rejected the submission made against the applicants’ extradition on the ground that there was “no general basis to decline extradition to Poland”. However, the Court recognized that these applicants and others in similar situations might have an exceptional case requiring “specific and precise assessment” to see whether they ran a risk of breach of their fundamental rights to fair trial if returned to Poland and they were granted permission to appeal. The Court made it clear that exceptional circumstances must be demonstrated. No such circumstances were demonstrated on the facts. 

Paragraphs referring to EU Charter: 

45. “If, on the other hand, this Court were to conclude that developments in Poland did not constitute a flagrant violation of rights to a fair trial, then it is argued that Articles 47 and 48 of the EU Charter carries no “threshold standard of ‘flagrancy’”. […] Hence, it is argued that the Charter affords a higher level of protection than does the ECHR.”

63. “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.”