Extradition Update: Poland & Deficiencies in the System of Justice

Minister for Justice and Equality v LM

This case involved the execution of a European Extradition Warrant ("EAW") against a Polish individual, "LM", who is suspected of drug trafficking. In March 2017, the Irish High Court refused to extradite LM due to the Poland's constitutional reforms and concerns about the integrity of the Polish justice system.

The argument was, in summary, that it was impossible for LM to receive a fair trial because the prosecutors, judges and the appellate system in Poland - following recent reforms - was not independent. The Irish High Court concluded that the mutual trust and confidence that states rely upon did not exist in respect of Poland and that, effectively, the rule of law in Poland was systematically damaged. 

The matter has been referred to the European Court of Justice, and the Advocate General at the ECJ, Mr Evgeni Tanchev, has today handed down a (non-binding) Opinion (link here)addressing the issue of deficiencies in the system of justice. The Advocate General has provided the following advice: 

"The execution of a European arrest warrant must be postponed where the competent judicial authority finds not only that there is a real risk of flagrant denial of justice on account of deficiencies in the system of justice of the issuing Member State but also that the person who is the subject of the warrant is exposed to such a risk... In order to determine whether the individual concerned is exposed to such a risk, the executing judicial authority must take account of the particular circumstances relating both to that person and to the offence in respect of which he is being prosecuted or has been convicted". 

The Advocate General's Opinion is not binding and the Judges of the Court are now beginning their deliberations on this case. The ECJ often, though not always, follows the advice of its Advocate General in its final rulings

The Polish extradition cases currently pending in England and Wales will of course be considered on a case by case basis, reviewing a Requested Person's particular circumstances and reasons why a particular case cannot be heard by an independent Court in Poland. However, this is likely to cause further delays in extradition proceedings relating to Poland and any other states who have poor justice systems. 

It is also conceivable that, where there is a systemic problem such that extradition cannot take place, similar arguments will be extended to other areas of law where, for example, mutual recognition of judgments, or other decisions, may be dismissed due to lack of mutual trust. 

Laurent Pech, Professor of European law at Middlesex University, recently commented on the possible dramatic consequences if the ECJ ruled that the Polish judicial system was in contravention of European standards:

If the [ECJ] stops recognising Polish courts as courts within the meaning of EU law, this could then leave the European commission no choice but to suspend EU funding to Poland. The impact on commercial arbitration involving Polish companies may also in time be too significant to be comfortably ignored by Polish authorities” (Source: The Guardian, link here).