The European Court of Justice (ECJ) issued an opinion on Thursday that a Polish man in Ireland fighting extradition back to Poland would have to demonstrate to an Irish court why he personally could not expect a fair trial in his home country.

The case threatens to aggravate an already bitter feud between the EU and Poland over accusations Warsaw is not respecting the rule of law.

The Luxembourg-based court's stated opinion could also have implications for the future of extradition agreements between EU member states. It would, in particular, cast into doubt the future workability of the European Arrest Warrant (EAW) agreement.

The Polish national, referred to by the ECJ court as LM, is wanted in Poland in relation to drug trafficking offences in 2007 and has been in custody in Dublin awaiting trial since 2017.

Read more: Poland ex-President Lech Walesa leads fight against judicial reform

ECJ Advocate General Evgeni Tanchev said in a statement on Thursday that an extradition request by Poland should be delayed if the Irish High Court found:

• a real risk of "flagrant denial of justice" due to deficiencies in the legal system in Poland
• that the person subject to the warrant was exposed to such a risk.

If a full sitting of the ECJ, likely in July, accepts Tanchev's opinion, the case will be sent back to the High Court in Dublin. If one or both of the above points are valid, the Polish authorities must be given the chance to answer the case made against them.

However, the ECJ stated in its opinion that if the Irish court ruled there was a risk of flagrant denial of justice due to the recent reforms in Poland, this "could not be taken to mean that no Polish court would be capable of hearing any case in compliance with the right to a fair trial."

An EU legal first

In an EU-legal first, an Irish high court judge in March refused to extradite the accused, LM, back to Warsaw due to concerns about the integrity of the Polish justice system.

Irish Judge Aileen Donnelly said then that the rule of law in Poland had been "systematically damaged" by reforms of Poland's judicial system.

"The recent changes in Poland have been so damaging to the rule of law that this court must conclude that the common value of the rule of law, has been breached," Donnelly said at the time.

Polish legal reforms

Reforms by Poland’s ruling Law and Justice party since it came to power in late 2015 include giving parliament the power to choose members of the National Council of the Judiciary (KRS), whose job is to oversee judicial impartiality.

The European Commission has already launched disciplinary proceedings against Poland over systemic threats to the independence of the Polish judiciary.

The commission could rule to suspend EU funding to Poland.

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

jbh/jm (Reuters, AFP)

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