The fate of judges in Ireland and Poland is becoming entwined.
Our Law Society issued a welcome statement a few days ago on the situation facing judges in Poland. It focused on a law due to come into force this week which empowers the Polish president to determine how its Supreme Court is constituted. The law will also lead to almost 40% of the Supreme Court’s sitting judges being dismissed as a result of the retirement age being lowered from 70 to 65.
The controversy has been ongoing for some years and is well-known. The European Union is slowly ratcheting up its response to Polish measures. But now the Court of Justice of the European Union (CJEU) has made its own intervention in the affair.
The Irish High Court made a preliminary reference to the CJEU (Case C-216/18 PPU) regarding a Polish national who was the subject of three European arrest warrants from Polish courts in relation to prosecuting charges concerning illicit trafficking in narcotic drugs. He did not consent to his surrender to the Polish authorities, on the ground that, on account of the reforms of the Polish system of justice, he ran a real risk of not receiving a fair trial.
The Advocate General gave his opinion last week. He said that 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 the risk.
Lack of independence in the courts of the issuing state may, therefore, amount in principle to a flagrant denial of justice. However, the lack of independence must be so serious that it destroys the fairness of the trial. The Advocate General said it is for the Irish court to determine whether the alleged lack of independence is so serious that it will lead to such a result.
We will now have to await the Court’s decision, although the Advocate General’s opinion is usually followed.
However, and amusingly in view of this opinion, Ireland is itself in the dock over its system of judicial appointments. The country is being monitored by the European Commission. Earlier this year, the Commission issued its regular semester country reports on Member States, and this is what it said for Ireland:
‘The envisaged composition of a new body for proposing judicial appointments raises concerns regarding the level of participation of the judiciary in that body. The proposed composition of the Judicial Appointments Commission, which would comprise only 3 judges over 13 (including a lay chairperson accountable to the Oireachtas) would not be in line with European standards (Paragraph 47 of Recommendation CM/Rec(2010)12 adopted by the Committee of Ministers of the Council of Europe on 17 November 2010), and was opposed by the Association of judges in Ireland.’
The background is unusual. It is the Minister for Transport in the Irish government who has been pushing hard for a Judicial Appointments Commission Bill, threatening to resign if it does not pass. The bill has now been approved, much amended, by the Oireachtas (lower house), and is before the Seanad (upper house). One of the changes is that the number of members of the new Commission will be 13, with a majority lay membership, including a lay chair.
In the original proposal, as we have seen, there were very few judicial members. The Chief Justice of Ireland, Mrs Susan Denham, took the exceptional step of meeting the Taoiseach to express her grave concerns. But the number of judges has now been increased. Paragraph 47 referred to above says in effect that an independent authority ‘drawn in substantial part from the judiciary’ should have a powerful say in judicial appointments.
The Law Society of Ireland issued a statement last year welcoming the proposal, including the majority non-legal membership and the principle of a lay chair, with the following quote:
‘The Society has long called for a reduction in the discretion of the Government in judicial selection because of persistent fears that judicial selection has been too tightly linked to political party patronage or perceptions of political party patronage.’
So a court in Ireland has sent a case to the CJEU complaining about changes to the appointment of judges in Poland at the same time as judges were complaining in Ireland about impending changes to their own system at home. The Advocate General has given a generally supportive opinion.
How long will it be before courts in Poland are refusing to execute a European arrest warrant to send an Irish citizen back to Ireland because of its judicial appointments system?
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