Between 2012 and 2013, three European Arrest Warrants (EAW) were issued against Mr. Arthur Celmer for alleged drug-related offences. On 23 March 2018 Justice Donnelly, the Irish judge who was called upon to decide on the execution of the EAW against Mr. Celmer, requested a preliminary ruling from the Court of Justice of the EU (the CJEU). The questions essentially aimed at knowing whether, considering the generalized deficiencies as regards the respect of the rule of law in Poland, the executing authority is allowed to suspend the execution of an EAW issued by Polish authorities, as the situation appears prima facie incompatible with the requirements of the right to a fair trial guaranteed by Article 47 of the Charter of Fundamental Rights of the EU (the Charter). The CJEU, in its reply of 25 July 2018, made clear that the executing authority is indeed allowed to refrain from executing the EAW, but only after having carried out an individual assessment as to the risk that the requested person would suffer a breach of the essence of his/her right to a fair trial.

On 19 November 2018, the High Court of Ireland delivered its final decision - an appeal is pending against it before the Supreme Court - in the Celmer saga. Justice Donnelly, after having carried out an individual assessment as to the specific risk of Mr. Celmer to suffer a breach of the essence of his right to a fair trial, considered that this threshold was not met and ordered his surrender. More importantly, she considered that the relevant test to be applied was that of ‘flagrant denial of justice’. This test has been elaborated by the European Court of Human Rights (‘the ECtHR’), and allows a state to refuse the extradition of a person under Article 6 ECHR only when there is a risk that, if extradited, the person will face a violation of his right to a fair trial which amounts to ‘a nullification or destruction of the very essence of that right’ (Al Nashiri v Poland, para. 563). The judgment touches upon many issues, ranging from the existence of an onus probandi on the requested person, to the obligation of the executing authority to engage in a dialogue with the issuing authority. This contribution will focus on one particular element, namely the assessment of why and how the Irish court applied the ‘flagrant denial of justice’ threshold.

As to the why, Justice Donnelly, relying also on the opinion by AG Tanchev in LM, argued that, if the CJEU wanted to amend the well-settled test of ‘flagrant denial of justice’ it would not have done so by implication. In fact, in the second question referred to the CJEU, Justice Donnelly specifically asked whether that was the relevant test to be applied. Therefore, she concludes, the concepts of ‘breach of the essence of the right’, used by the CJEU, and that of ‘flagrant denial of justice’, elaborated by the ECtHR, are to be understood as ‘one and the same’ (para. 24).

While this argument may appear convincing at face value, there are several reasons that suggest otherwise. Firstly, even if the CJEU did not explicitly set aside the ‘flagrant denial of justice’ test, the expression was used in the judgment only to summarise the arguments put forward by the referring court and Mr. Celmer. Furthermore, the expression ‘breach of the essence of the right’ seems to come from Article 52 (1) of the Charter which provides that ‘[a]ny limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms’. Lastly, it has to be stressed that when the ECtHR, in Stapleton v. Ireland, extended the ‘flagrant denial of justice’ test to the EAW, it did so arguably to accommodate the principle of mutual recognition: by enhancing the threshold that may trigger a violation of the Convention, the ECtHR wanted to limit its intervention only to situations that cannot be remedied by Union Law. Therefore, it appears more logical to sustain that the CJEU simply underscored that the execution of an EAW may impinge upon the fundamental rights guaranteed by the Charter, but not in a way as to impair the essence of the rights thereby protected.

Concerning the application of the test, the Irish High Court held that in order for the threshold of ‘flagrant denial’ to be met, it is necessary that also other aspects of the right to a fair trial are at risk of being violated, albeit conceding that in ‘very particular situations’ a lack of independence and impartiality may amount in itself to a flagrant denial of justice (para. 100). After having, correctly, excluded that the systemic deficiencies alone may be sufficient to lead to a refusal of surrender, Justice Donnelly continued with the individual assessment. This assessment essentially concerned the adverse effects of comments made by the Deputy Minister of Justice, who on several occasions had labelled the requested person a ‘dangerous criminal’ in relation to Mr. Celmer’s presumption of innocence. Stretching the notion of mutual trust to its limits, Justice Donnelly considered that in the light of the answers provided by the Polish authorities, she was convinced that ‘these comments will not have any significance in establishing whether or not the respondent is an offender who committed the acts’ (para. 114).

Also, the judgment does not assess the negative impact these comments could have on the independence and impartiality of the courts which are to try the requested person. In a situation in which the Minister of Justice has changed the presidents of each of the courts where Mr. Celmer is going to be tried, is acting as Public Prosecutor in all criminal cases, and has the possibility to initiate a disciplinary proceeding against any judge, the comments on criminal liability made by his deputy seem capable of decisively, and flagrantly, undermining the right to an independent and impartial tribunal of the accused person. Justice Donnelly does seem aware of these concerns (para. 117), but she does not consider that this would meet the threshold of a flagrant denial of justice. If that is indeed the threshold to be met, then she would probably be correct in assuming so. In line with the ECtHR’s case law, a flagrant denial of justice must be understood as ‘a nullification or destruction of the very essence of that right’. This wording leaves no doubt as to the stringency of this test: in fact, the threshold was met in just four cases. As also noted by AG Tanchev in his opinion (para. 83-85), three of these concerned suspected terrorists detained at Guantanamo Bay and one concerned the admission of evidence obtained by torture.

In conclusion: if the CJEU in LM indeed adopted the flagrant denial of justice test, the decision by Justice Donnelly constitutes a faithful application of the CJEU’s judgment and the case law of the ECtHR. This contribution has questioned, however, whether the CJEU actually adopted the ‘flagrant denial of justice’ test. In fact, the adoption of such a high threshold would mean that Member States like Poland and Hungary, where the government recently announced the institution of a new executive-appointed Supreme Court, would be free to continue the erosion of the rule of law bulwarks without paying any cost in the framework of criminal cooperation. Further, the adoption of the ‘flagrant denial of justice’ test would drag to the bottom the level of protection guaranteed by Article 47 of the Charter in the context of the EAW, fuelling a legitimate criticism from those who believe that mutual trust actually means blind trust.

This blog is part of the project: Mobility and Security in Europe.