Lis & Ors v Regional Court In Warsaw, Poland & Ors

Systemic or generalised deficiencies affecting judicial independence in an issuing Member State do not automatically require refusal to execute a European arrest warrant. The executing court must make a specific and precise assessment of the requested person’s position.

Refusal is justified only where there are substantial grounds for believing that surrender would expose that person to a real risk of breach of the essence of the right to a fair trial. The assessment must consider the person’s situation, the nature of the alleged offence and its factual context. The “essence” of the fair-trial right corresponds to the established “flagrant denial of justice” threshold. Pending the Article 7 process, Polish courts remain judicial authorities for the purposes of the EAW scheme.

Three applicants were subject to European arrest warrants issued by Polish judicial authorities. They challenged extradition on the ground that legislative and political developments had undermined the independence of the Polish judiciary and created a real risk of breach of Article 6 of the European Convention on Human Rights.

The applications followed the decision of Donnelly J in Minister of Justice and Equality v Celmer [2018] IEHC 119, which led to a preliminary reference to the Grand Chamber of the Court of Justice of the European Union. The Grand Chamber’s decision in LM: Request for a Preliminary Ruling from High Court (Ireland), Case C-216/18 PPU, was delivered before judgment in these applications.

The central issues were whether Polish courts remained “judicial authorities”, whether the fair-trial threshold differed under EU law, and whether the general deficiencies required refusal of extradition without an individual assessment.

1. Permission and general approach. Permission to appeal was granted in each case, but the submissions against extradition were rejected. There was no general basis for declining extradition to Poland.
2. Judicial authorities. The meaning of “judicial authorities” under Article 6 of Framework Decision 2002/584 is autonomous in European Union law, and the Extradition Act 2003 must be construed consistently with it. It would contradict the Grand Chamber’s decision in LM to hold generally that Polish courts had ceased to be judicial authorities. General suspension of the EAW scheme was reserved to the Article 7 process and the European Council.
3. Fair-trial threshold. The court accepted that the “essence” of the fundamental right to a fair trial, referred to repeatedly in LM, was not materially different from the Strasbourg test of a “flagrant denial of justice”. The applicants’ proposed lower threshold was rejected.
4. Two-stage assessment. The material concerning Poland, including the Commission’s Reasoned Proposal under Article 7(1) TEU, established sufficient concern about judicial independence to require examination of the applicants’ individual positions. The court had to consider whether the deficiencies could affect the courts dealing with each person’s case and, if so, whether substantial grounds existed for believing that the individual would face a real risk to the essence of the fair-trial right. Relevant matters included personal situation, offence and factual context. Further information could be requested where properly arguable individual grounds existed.
5. Application. None of the three applicants was shown to face political or otherwise sensitive proceedings. Their ordinary criminal allegations and sentence-related proceedings disclosed no present basis for finding the necessary individual risk. The applicants nevertheless remained entitled to formulate individual applications supported by exceptional circumstances.
6. Practical direction. General expert evidence should not ordinarily be required in Polish extradition cases while the Article 7 process remained unresolved. The public materials generated by that process were sufficient to address the general position.

The applications concerned appeals in extradition proceedings. The judgment records the prior decision of Donnelly J in the Irish High Court in Minister of Justice and Equality v Celmer [2018] IEHC 119 and the subsequent preliminary ruling of the Grand Chamber of the Court of Justice of the European Union in LM: Request for a Preliminary Ruling from High Court (Ireland), Case C-216/18 PPU.