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Generalised deficiencies in rule of law of requesting state are not sufficient to justify a refusal an application for surrender

By: James Cross BL

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High Court in a judgment concerning four European Arrest Warrants, orders the surrender to Poland of the respondent in all four warrants in respect of all offences, save one where correspondence was not established, on the grounds, inter alia, that generalised and systemic deficiencies in the rule of law of the requesting state are not sufficient in and of themselves to justify a refusal an application for surrender.

European Arrest Warrant –– Polish authorities seeking the surrender of the respondent – four warrants – first warrant relates to six offences - notice of objection – correspondence - not enough information provided for the Court to be satisfied that possession of the substance described at para. E. IV of the first EAW would constitute an offence in this jurisdiction - already been convicted and sentenced in connection with these very offences in the warrant - legal issue to be resolved under the law of the Republic of Poland - assurance from the issuing judicial authority that if it is so established that the offences are the same then proceedings will be discontinued – retrospective criminalisation – second warrant is a custodial warrant – five offences – trial in absentia - he principles applicable to the interpretation and application of s. 45 of the Act of 2003 - no breach of the respondent’s rights of defence, and that he either knew of the date of the proceedings or failed to exercise any diligence at all about it, and surrender is not prohibited by s. 45 of the Act of 2003 – third warrant is a prosecutorial warrant – four offences - correspondence established – fourth warrant is a prosecutorial warrant – four offences – amendment of the warrant – objections applicable to all warrants - surrender of the respondent would violate his rights under Article 8 of the Convention - offences are old and that there has been a significant delay in seeking his surrender – nothing raised offences sustain an objection - he was not provided with any of the information to which he claimed he is entitled to be provided with pursuant to Articles 4, 6 and 7 of the Directive – argument rejected in previous High Court judgment - objection based upon rule of law concerns in Poland - respondent has not put forward any evidence as to how any of the generalised or systemic deficiencies in the rule of law in Poland, regardless as to when those deficiencies first arose, should cause the Court to be concerned that there are substantial grounds for believing that, having regard to his personal situation, and the nature of the offences with which he is charged, he will run a real risk of a breach of the fundamental right to a fair trial – no affidavit sworn - appointment of judges – applicable test - general grounds arising out of generalised and systemic deficiencies in the rule of law in Poland - generalised and systemic deficiencies in the rule of law of the requesting state are not sufficient in and of themselves to justify a refusal an application for surrender - respondent has not advanced any reasons to cause the Court to have any concerns that he personally will not receive a fair trial, and since there is nothing unusual about the crimes of which he stands accused, or the factual background to the events giving rise to the charges he is facing, the respondent has not reached the very high threshold of satisfying the Court that, if surrendered, there are substantial grounds for believing he will be at a real risk of not receiving a fair trial by an independent and impartial tribunal - Court “established by law” – legislative changes in Poland, and their impact on the rule of law – alleged that Polish judges were appointed illegally - possibility that judges may be appointed otherwise than in accordance with law is a systemic and generalised deficiency in the rule of law, but it is not open to this Court to refuse surrender of a requested person on the basis of a systemic or generalised deficiency – must be satisfied that there are substantial grounds for believing that the requested person will, if surrendered, run a real risk of breach of his or her fundamental right to a fair trial, before a tribunal established in accordance with law - substantial grounds in turn can only be established by reference to a specific and precise examination of the personal situation of the respondent - no information available to suggest that there are substantial grounds to believe that the respondent will stand trial before a judge who has not been appointed in accordance with law - respondent is unable to advance any evidence regarding the legality of the appointment of the judges who will be in charge of the proceedings that he faces, if surrendered – surrender ordered in all four warrants on all offences save one where correspondence was not established -

Note: This is intended to be a fair and accurate report of a decision made public by a court of law. Any errors should be notified to the editor and will be dealt with accordingly.

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