Robert Wozniak v District Court in Gniezno, Poland
| Jurisdiction | England & Wales |
| Judge | Mr Justice Fordham |
| Judgment Date | 05 June 2020 |
| Neutral Citation | [2020] EWHC 1459 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/4299/2019 |
| Date | 05 June 2020 |
[2020] EWHC 1459 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Fordham
Case No: CO/4299/2019
Emilie Pottle for the appellant
Alexander Dos Santos for the respondent
Hearing date: 3 June 2020
Approved Judgment
I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
THE HON. Mr Justice Fordham
Introduction
I heard this renewed application for permission to appeal on Wednesday 3 June 2020, by way of Skype conference hearing. It and its start-time were published in the cause list, as were email contact details usable by anyone who wished to observe the hearing. I heard oral submissions just as I would in the court room. I was satisfied that this constituted a hearing in open court, that the open justice principle was secured, that no party was prejudiced, and that insofar as there was any restriction on any right or interest it was justified as necessary and proportionate. I announced at the end of the hearing that I would be granting permission to appeal on the ‘Judicial Authority’ issue, but refusing permission to appeal on the Article 8 issue, for reasons which would follow in a written judgment.
The ‘Judicial Authority’ Issue
On this issue I grant permission to appeal, with (a) permission to amend the grounds of appeal (b) the Application to Amend Grounds of Appeal document dated 26 May 2020 standing as the Grounds of Appeal (c) permission to adduce the additional evidence referred to at paragraph 41 of that document. Whether further and updating material, as to the latest legislative developments in Poland and in the EU, may be relied on at the substantive hearing of this appeal will be a matter for the court dealing with that hearing. I direct that this case be linked to Chlabicz v Regional Court in Bialystok Poland CO/4976/2019, in which permission to appeal was granted by Lewis J on 3 June 2020, and that the substantive hearing of the appeal in this case should be heard by the same Court as deals with that case. The consequence is that the court, revisiting the first issue described in paragraph 3 of the judgment in Lis (No.1) [2018] EWHC 2848 (Admin) will at the same time be revisiting the second issue described in that same paragraph. The reasons why I have taken this course are as follows.
I start with the applications to amend the grounds of appeal and adduce the additional evidence. I decided it was appropriate to consider the matter being advanced as to its substance. Having done so, and having concluded that the matter in substance discloses a reasonably arguable ground of appeal, I have decided to allow the applications to amend and reduce the further material. The issue is an important one. The respondent had a full and fair opportunity to consider and respond. It is in the interests of justice, and the public interest, that the appellant should not be shut out. The Venice Commission Joint Opinion of 16 January 2020 (Venice Commission Report) is the key document relied on and could have been raised earlier. But it could not have been relied on before the district judge (the judgment was dated 30 October 2019), so the appeal court is necessarily in the realms of fresh material and a new argument. It could have been raised before permission to appeal was considered on the papers by Thornton J on 12 March 2020, and the appellant lost the chance to have her grant permission on it, and I have lost the advantage of any reasoning had she refused it. None of that, however, is a basis for shutting the point out, if there is something in it.
The issue, as I see it, comes to this. The question is whether the latest legislative developments in Poland (December 2019/January 2020) compromise the position of Polish courts so far as the fundamental guarantees of independence and impartiality (the “2iGuarantees”) are concerned, with the vitiating consequence of removing the necessary continuity of a ‘Judicial Authority’ (Extradition Act 2003 section 2) for the lawful maintenance of the pursuit of an EAW, in a conviction warrant case, where the legislative changes postdate the issuing of the EAW, and where there has been no determination by the Council pursuant to TEU Article 7. That resolves, for present purposes, into two main questions. (1) Whether a TEU Article 7 Council determination is a legal prerequisite before there can be any such vitiating consequence. (2) If not, whether the latest legislative developments can support the conclusion that there is such a vitiating consequence. I consider it reasonably arguable that the answers are (1) no and (2) yes.
The 2iGuarantees are familiar aspects of the rule of law, linked to effective judicial protection and the fundamental right to a fair trial: see the non-extradition case of AK v Sad Najwyzsky (Case C-585/18) [2020] 2 CMLR 10 (CJEU Grand Chamber 19 November 2019) paragraphs 120–125. AK was an equal treatment case involving the Polish labour courts, where the Luxembourg Grand Chamber treated the 2iGuarantees as parameters for necessary application by an appropriate Polish court with jurisdiction to do so: paragraphs 166–168 and 171. One concern articulated about the latest legislative developments in Poland is that they have a ‘nullifying effect’ on this: see the Venice Commission Report at paragraph 31 (discussing the “nullifying effect” of legislative provisions which “eliminate the competence of the Polish courts to examine whether another court decision was issued by a person appointed as a judge in compliance with the Constitution, European law and other international legal standards”), paragraph 36 (“These provisions, taken together, significantly curtail the possibility to examine the question of institutional independence of Polish courts by those courts themselves”), paragraph 59 (“Polish courts will be effectively prevented from examining whether other courts within the country are ‘independent and impartial’ under the European rules). This is an aspect of what is described (paragraph 60) as follows: “The amendments of December 2019… put Polish judges into the impossible situation of having to face disciplinary proceedings for decisions required by the ECHR, the law of the European Union, and other international instruments”.
A key concern articulated in relation to the latest legislative developments in Poland concerns possible disciplinary and penalising consequences against judges, for the content of what they say in the course of their judicial acts, as courts, if what they say constitutes “acts or omissions which may prevent or significantly impede the functioning of an organ of the judiciary” or which constitute “an infringement of the dignity of the office”. The Venice Commission Report say this “threatens the principle of legality” because these provisions “invite very subjective interpretations and could easily be abused to interfere improperly in judicial roles” (paragraph 44). This is a concern about “disciplinary responsibility of judges for judicial acts” (paragraph 25). It is, on the face of it, a very serious concern. There are other concerns raised in the Report (summarised at paragraphs 59–60), relating to the 5 key features of the latest legislative developments (paragraph 19). Ms Pottle relies on them all, and on their cumulative effect. I would not have granted permission to appeal in this case, but for the concern relating to disciplinary implications regarding the content of judicial acts. I am not going to shut out reliance on the other points, and their effect in combination. I can see that the nullifying effect problem is a particularly important issue, and its implications for extradition seem at least appropriate for consideration. A disciplined focus on what really matters will be necessary.
The 2iGuarantees can be relevant in extradition proceedings in several ways. One way concerns the fair trial guarantee arising in the case of an accusation warrant, where the individual is being extradited to face a criminal trial. In cases of that kind, ECHR Article 6 considerations can be raised. The law adopts the familiar 2-stage approach, read across from the case-law about Article 3 and prison conditions: see LM Case C-216/18 (CJEU Grand Chamber 25 July 2018) paragraphs 59–60. That was the two-stage approach applied by the Divisional Court in Lis (No.1) at paragraph 71 (where the stage-1 threshold was crossed: “there is sufficient concern about the independence of the Polish judiciary to mean that these applicants and others in a similar position should have the opportunity to advance reasons why they might have an exceptional case 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”); and then in Lis (No.2) [2019] EWHC 674 (Admin) (where the stage-2 exercise was undertaken and the individual appellants' challenges rejected). This Article 6 ECHR fair trial topic is, as I understand it, to be revisited in Chlabicz CO/4976/2019, pursuant to the grant of permission to appeal...
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