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No information to suggest that respondent will stand trial in Poland before a judge who has not been appointed in accordance with law

By: James Cross BL

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High Court, in European Arrest Warrant proceedings, orders the surrender of the respondent to Poland, on the grounds that: the respondent failed to adduce evidence to rebut the presumption that the requesting state will not comply with the Framework Decision and the respondent’s fundamental rights; no argument was established to support the argument that there are substantial grounds for believing the requested person will not receive a fair trial; and 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.

European arrest warrant – Poland seeks the surrender of the respondent – 5 offences - boxes referring to “fraud” and “crime against protection of data collected, stored, processed and transferred within an IT system” are ticked – points of objection - the pre-trial detention has been pre-determined against the respondent without any right to be admitted to bail – further information - clear from the information received that the respondent had an entitlement to apply to vacate or vary the order of pre-trial detention – argued that the application of pre-trial detention in Poland is excessive and disproportionate - presumed, unless the contrary is shown, that the requesting state will comply with the Framework Decision, which expressly states that the Framework Decision does not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 of the Treaty on the European Union which, in turn, provides that the European Union shall respect fundamental rights as enshrined in the Convention – report from Polish lawyer - while the respondent produced some evidence that there were, historically, structural problems related to excessive use of pre-trial detention in Poland, and more recent evidence in the form of an opinion from a lawyer in Poland that those problems are continuing, the latter amounted to no more than three lines and cross references to three decisions of the ECtHR that were not opened to the Court - not satisfied that the respondent has adduced before the Court evidence that comes even close to rebutting the presumption that the requesting state will comply with the Framework Decision – rule of law concerns in Poland – further information - new laws to apply to the courts at the level with jurisdiction over the proceedings to which the respondent will be subject, on his surrender – whether there is objective, reliable, specific and properly updated material indicating that there is a real risk of a breach of the fundamental right to a fair trial guaranteed by the second paragraph of Article 47 of the Charter of Fundamental Rights of the European Union on account of systemic or generalised deficiencies so far as concerns the independence of the issuing Member State’s judiciary – real risk apparent - the executing judicial authority to determine specifically and precisely, the extent to which the general deficiencies identified are liable to have an impact at the level of the courts of the Member State having jurisdiction over the proceedings, to which the requested person will be subject and, whether, having regard to his or her personal situation, the nature of the offence for which he or she is being prosecuted and the factual context in which the arrest warrant was issued, and in the light of any information provided by the Member State pursuant to Article 15(2), there are substantial grounds for believing that that person will run such a risk if surrendered to that Member State - now been stated twice by the CJEU that such generalised and systemic deficiencies in the rule of law of a requesting Member State are not in and of themselves a sufficient basis upon which to refuse an application for surrender - no argument was advanced to this effect in this case, and nor was any information provided to the Court that could support the argument that there are substantial grounds for believing the requested person will not receive a fair trial - lawfulness of appointment of judges - no longer a procedure available to challenge the lawfulness of a judge’s appointment - does not follow that all appointments made pursuant to the new laws will be contrary to law - 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 - 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 - a mere possibility that this might occur is not sufficient to refuse an application for surrender – surrender ordered -

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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