Mutual Trust, Rule of law (fair trial), EAW

High Court of Justice of England and Wales

High Court of Justice of England and Wales (EWHC)

[2018] EWHC 2848 (Admin)

31 October 2018

Lis & Lange v Regional Court in Warsaw and Zielona Gora Circuit Court, Poland (No 2) [2019] EWHC 674 (Admin)

• Article 2 TEU
• Article 7 TEU
• Article 47 CFR
• Articles 1(3) and 6 Framework Decision 2002/584/JHA
• Commission's reasoned proposal under Article 7(1) TEU of 20/12/2017

CJEU cases:

• Judgment in Celmar, C-216/18

Article 6 ECHR

Applications for permission to appeal by three applicants who were subject to EAW issued against them by the Polish judicial authorities. Referring to the Poland‘s justice reforms which significantly affected the Polish judicial independence, the applicants submitted that their surrender to Poland would entail a breach of their right to a fair trial. The EWHC granted applicants permission to appeal but it found that the applicants‘ situation was unlikely to fulfil the exceptional circumstances requirement, defined by the CJEU in the LM judgment, to exclude the execution of EAWs.

Rule of law (fair trial)

Violation of the fundamental right a fair trial granted by Article 47 of the Charter of a person subject to an EAW issued by Poland because of the rule of law deficiencies in that Member State.

No

No

Sections 2, 10, 17, 21, 21B, 54, 56, 58, 64, 65, and 187 of the Extradition Act 2003

The three applicants, who were subject to EAWs issued against them by the Polish judicial authorities, applied for permission for appeal before the EWHC. The first and third applicants (Pawel Lis and Piotr Pawel Chmielewski) were sought to face trial for fraud offences before the Regional Court of Warsaw and the District Court in Radom, respectively. The second applicant (Dariusz Lange) was sought to serve a sentence of imprisonment. 

The applicants made two pleas. Firstly, they submitted that the Polish judicial reforms have such a compromising impact on the independence of the judicial system that their surrender would expose them to a real risk of breach of their right to a fair trial. They argued that in Poland the lack of judicial independence reaches the standard of “flagrant denial” of that right which, according to the case-law of the ECtHR on Article 6 of the ECHR, is the threshold preventing surrender. In any case, the applicants maintained that, if the EWHC concluded that the Polish reforms did not entail a flagrant violation of the right to a fair trial, the EU law does not require such a test; the applicants relied on the opinion of Advocate General Sharpston in Radu (C-396/11); she suggested that a risk of violation of Articles 47 and 48 of the Charter occurs where the deficiencies in the trial process are “such as fundamentally to destroy its fairness” (para. 83). According to the applicants, this requirement was fulfilled in the specific case. 

Secondly, they contended that the lack of independence of the Polish judiciary implies that courts and tribunals in Poland can no longer be recognised as “judicial authorities”, within the meaning of Article 6 of Framework Decision. According to the applicants, the circumstance that the EAWs were issued against them before the adoption of the Polish Law on Ordinary Courts Organisation is immaterial, because Polish courts are no longer judicial authorities with whom the UK courts can be involved in mutual cooperation and mutual recognition. 

The EWHC rejected the applicants‘ argument according to which Polish courts and tribunals can no longer be qualified as judicial authorities, within the meaning of Framework decision. The EWHC found that such an argument is contrary to the CJEU judgment in LM. As a matter of fact, the LM test and the conclusion that a general suspension from the EAW mechanism can only follow from the conclusion of the Article 7 TEU procedures are inconsistent with the argument that no Polish court can be regarded as a judicial authority under Framework decision. 

As regards the fair trial standards, the EWHC rejected the applicants‘ argument by referring to the LM judgment. After pointing out that in LM judgment the CJEU frequently mentioned the risk of a violation of the “essence” of the right to a fair trial and did not make any distinction between that concept and the notion of “flagrant denial of justice”, the EWHC maintained that no “sensible distinction” can be made between a breach of the essence of the right to a fair trial and the flagrancy test. 

As for the submissions against surrender, the EWHC found the existence of an abstract risk of serious breach of judicial independence in Poland. Nevertheless, in line with the LM ruling, the EWHC stressed that such finding is not enough to suspend the EAW system in a general way; instead, it is necessary to carry out the second stage of the LM test and examine the specific impact of the said generalised deficiencies on the applicants‘ right to a fair trial. In that regard, the EWHC found that the lack of political connotation of the applicants‘ criminal allegations makes it difficult to demonstrate the existence of an individualised risk of an unfair trial. 

While being sceptical that further information can show the existence of such an individualised risk, the EWHC found that the applicants must have the opportunity to appeal and demonstrate that the second stage of the LM test was fulfilled. 

The EWHC referred to Article 47 of the Charter and relied on the application given to it in LM. 

The applicants submitted that the Charter provides a higher level of protection than the ECHR because, under the EU law, the refusal of surrender does not require the flagrant denial test, which was elaborated by the ECtHR in its case-law on Article 6 (Soering v United Kingdom, ECLI:CE:ECHR:1989:0707JUD001403888; Othman v United Kingdom, ECLI:CE:ECHR:2012:0117JUD000813909). The EWHC specified that there is no “sensible distinction” between the “flagrant denial test”, applied by the ECtHR, and the notion of the risk of a breach of the essence of the right to a fair trial to which the CJEU referred in LM. 

The EWHC summarised the main points of the CJEU judgments in LM. In line with that judgment, it affirmed that the EAW system can be suspended only after the Article 7 TEU procedures are concluded. It follows that, if the executing authority finds the existence of a real risk of violation of the right to a fair trial, it must determine whether, in the specific circumstances of the case, there are substantial grounds for believing that the surrender of the requested person will expose him/her to such a risk. 

Not applicable

The EWHC widely summarised the CJEU judgment in LM and referred to the two-stage test defined by the CJEU on that occasion. 

Against the background of the two-stage test defined by the CJEU in LM, the EWHC found that since there is sufficient concern about the lack of independence of the Polish judicial system, the applicants must have the permission to appeal and to submit their reasons to prove that there are substantial grounds for believing that their surrender would expose them to a real risk of a violation of their right to a fair trial. Nevertheless, the EWHC affirmed that the existence of such a risk is unlikely to be demonstrated in the applicants‘ case. 

No impact on national legislation/policy

Not applicable

Although the case is not a direct follow up of the LM judgment, it directly applied the test elaborated by the CJEU on that occasion. It is interesting to note that the EWHC found that the lack of political dimension of the applicants‘ criminal allegations is symptomatic of the absence of a real risk of violation of the right to a fair trial in the specific circumstances of the case. 

https://www.judiciary.uk/wp-content/uploads/2018/11/lis-judgment-2011101.pdf