Case may spark showdown between the European court of justice and Poland over its ‘systematically damaged’ rule of law

An Irish high court judge has refused to extradite a suspected drugs trafficker to Poland due to concerns about the integrity of the Polish justice system, in a landmark decision that could lead to a showdown between the Polish government and the European court of justice (ECJ).

Justice Aileen Donnelly referred the extradition case of Artur Celmer – a Polish man arrested on drugs charges in Ireland last year – to the ECJ because recent legislative changes to the Polish judicial system had been “so immense” that Ireland’s high court had been forced to conclude that the rule of law in Poland had been “systematically damaged”, undermining the “mutual trust” that underpinned the European arrest warrant process.



Laurent Pech, professor of European law at Middlesex University, told the Guardian that there could be dramatic consequences if the ECJ ruled that the Polish judicial system was in contravention of European standards.



“If the [ECJ] stops recognising Polish courts as courts within the meaning of EU law, this could then leave the European commission no choice but to suspend EU funding to Poland. The impact on commercial arbitration involving Polish companies may also in time be too significant to be comfortably ignored by Polish authorities.”



Poland is 'on road to autocracy', says constitutional court president Read more

Poland’s ruling Law and Justice party (PiS) passed legislation last year giving parliament direct control of appointment over the body that appoints Polish judges. The minister of justice, who also serves as the country’s prosecutor-general after the two offices were merged with enhanced powers, was given the right to dismiss and appoint court presidents, while approximately 40% of supreme court judges have been forced to take early retirement.



The government and president Andrzej Duda, a former Law and Justice MEP, have also been accused of coordinating a campaign to capture Poland’s constitutional tribunal, Poland’s highest constitutional court.



Referring to “what appears to be the deliberate, calculated and provocative legislative dismantling by Poland of the independence of the judiciary, a key component of the rule of law,” Donnelly said that if Celmer were to be returned to Poland, “he will be returning to face trial in a jurisdiction where the minister for justice is now the public prosecutor and is entitled to play an active role over the presidents of courts. This has the potential for a chilling effect on those presidents.”



The Polish government has long denied that its reforms constitute a threat to the rule of law, maintaining that foreign criticism of its judicial reforms are based on partial understanding and misinformation.

“It is incomprehensible that general, abstract deliberations, projections and speculations become the basis of such an important decision as the handover of a criminal sought in the whole of Europe,” said Poland’s deputy justice minister Marcin Warchoł, according to PAP, the state press agency. Warchol suggested that the Irish court did not understand his government’s reforms.

But critics of the Polish government suggest that such arguments are unlikely to cut much ice in the courtrooms of the EU, where judges may be less squeamish than European politicians in deciding that Poland’s present judicial arrangements are in contravention of its EU commitments.

“The dynamics have shifted from the political arena, which is marred by cynicism and rotten compromises, to the courtroom, with its own logic and principles, said Tomasz Koncewicz, professor of law at the University of Gdańsk.

“The institutions cannot simply sit on the sidelines and watch. Hopefully European judges will be up to the task and understand the seriousness of the situation for the whole of the EU.”