Pawel Lis v Regional Court in Warsaw, Poland
| Jurisdiction | England & Wales |
| Judge | Lord Justice Irwin,Mr Justice Ouseley |
| Judgment Date | 21 March 2019 |
| Neutral Citation | [2019] EWHC 674 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/4738/2017 AND CO/6151/2016 |
| Date | 21 March 2019 |
[2019] EWHC 674 (Admin)
Lord Justice Irwin
Mr Justice Ouseley
Case No: CO/4738/2017 AND CO/6151/2016
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Edward Fitzgerald QC and Florence Iveson (instructed by JD Spicer) for the First Applicant
Edward Fitzgerald QC and Saoirse Townshend (instructed by Lloyds PR Solicitors) for the Second Applicant
Helen Malcolm QC and Benjamin Seifert (instructed by The Crown Prosecution Service) for the Respondents
Hearing date: 22 February 2019
Approved Judgment
Introduction
In this judgment we address the submissions made by two of the three Appellants in respect of whom we gave judgment in Lis, Lange and Chimielewski v Poland (No 1) [2018] EWHC 2848 (Admin), handed down on 31 October 2018. In that judgment, this Court dealt with the generic matters advanced on behalf of the Appellants in respect of the judiciary and judicial system in Poland. At the conclusion of the earlier proceedings, the Court rejected the submissions made to date, concluding that there was “no general basis to decline extradition to Poland”. However, we noted that there was:
“71. … sufficient concern about the independence of the Polish judiciary to mean that these Appellants and others in a similar position should have the opportunity to advance reasons why they might be exceptional cases, requiring individual “specific and precise assessment”, to see whether there are substantial grounds for believing they individually might run a real risk of a breach of their fundamental rights to a fair trial … We indicate, on the basis of the limited material available to us, that these cases would appear unlikely to fulfil that test and that those sought to be extradited for ordinary criminal offences, with no political or other sensitive content, would seem unlikely to be able to establish the necessary risk.”
It is of note that on 19 November 2018, there was handed down the judgment of Ms Justice Donnelly, sitting in the High Court of Ireland in the case of Minister for Justice and Equality v Artur Celmer (No 5) [2018] IEHC 639. It will be recalled that the same judge, following Minister for Justice and Equality v Celmer (No 1) [2018] IEHC 119, referred the matter of the general position relating to the Polish judiciary to the Court of Justice of the European Union [“CJEU”] which in turn led to the decision of the CJEU in LM C-216/18, that being the decision of the CJEU addressed by this Court in our earlier judgment in this case. The conclusions of the Irish High Court in Celmer (No 5) cannot, in my judgment, be distinguished from the conclusions of this Court in Lis, Lange and Chimielewski (No 1). In paragraph 122 of her judgment, Donnelly J said:
“122. In accordance with the decision of the CJEU in L.M., this Court is obliged to determine, specifically and precisely, whether having regard to this respondent's personal circumstances, the nature of the offence for which he is prosecuted and the factual context that forms the basis of the European arrest warrants and in light of the information from the issuing judicial authorities, there are substantial grounds for believing that he will run that risk if he is surrendered.”
In this Court's Order of 15 November 2018, each Appellant was directed to:
“EITHER file and serve Amended Grounds, with short accompanying submissions not exceeding 10 pages (including a revised time estimate), setting out [A] any specific or individual basis on which it is claimed, as an exception, that extradition should be refused on Article 6/Articles 47/48 of the Charter grounds, in the light of the judgment of 31 October 2018 and/or [B] any other basis on which it is now said extradition should be refused;
OR file and serve written Notice of withdrawal of the appeal against extradition.”
The Appellants Lis and Lange have sought to raise what are said to be specific and individual bases from which it is said they will suffer a flagrant denial of justice if extradited.
The Appellants' Submissions
In their written submissions of 28 November 2018, the Appellants identify the arguments they put forward as follows:
“The Appellants respectfully submit that their respective personal situations satisfy the LM §75 test, for different reasons:
• In the case of the First Appellant, the risk is established by consideration of the nature of the specific court before whom he will be tried;
• In the case of the Second Appellant, the risk is established by consideration of the particular nature of the proceedings that he faces.”
These propositions were supported by Mr Fitzgerald QC on behalf of both Appellants, who supplemented the written submissions with a “Speaking Note” and oral submissions on 22 February 2019.
Lis and the Warsaw Court
The core submission in relation to the Appellant Lis is that the President of the Warsaw District Court and other judges have been removed and replaced. The important evidence about these changes is contained in a joint “legal opinion” of Dominika Stepinska-Duch and Damian Tokarczyk completed in late April 2018 [“Stepinska”]. In paragraph 23 of that legal opinion, the authors record:
“The President of the Court in Warszawa Srodmiescie was removed, because this court has lately recognised and acquitted few cases of the political demonstrators and activists. One of the Vice Presidents in the circuit court in Warszawa was also dismissed, because she commenced a disciplinary proceedings against the current deputy of the Ministry of Justice …”
On the basis of this material and on the evidence of Professor Markiewiecz, which was also before this Court in the earlier hearing, it is said that:
“In the Warsaw Courts, the First Appellant is at real risk of being tried before a judge hand-picked by his prosecutor. The attendant manifest risk of lack of judicial independence … is not dependent in any way on his case having a “ political or special interest”.
Certain further evidence has been admitted before us which was not available at the time of the earlier judgment of this Court. This includes a letter from Judge Piotr Gaciarek of the Warsaw Regional Court, submitted to the Irish High Court in respect of Celmer (No 5). Judge Gaciarek continues to serve in the Warsaw Court and is a critic and opponent of the changes affecting the judiciary in Poland. He comments explicitly on the “assessments and opinions expressed in the letter of the President of the Warsaw Regional Court sent to you [Donnelly J] on 26 September 2018”,...
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