Thread by @SimonFRCox

EU Court’s Adv-Gen opinion on #Poland #FairTrial case is out. Thread to follow curia.europa.eu/juris/document…

Irish High Court was asked by Polish Gov to extradite Mr Celmer under EU law for trial on drug charges. Irish judge ruled Poland’s Gov has seriously undermined rule of law by taking political control over judges (agreeing with Euro Commission) 2/

So Irish Court asked Court of Justice of EU to rule on # approach Irish Court should take. AG opinion is advice to CJEU on how CJEU should rule. Mostly CJEU takes that advice, but not always. 3/

CJEU has already ruled that national court can block extradition to another EU state if prison conditions would be inhuman/degrading. 4/

This is first CJEU case about challenge to EU extradition on fair trial grounds*. AG says national court can block extradition. No surprise - big Q is “what approach should Court take to deciding this” 5/

A-G says the decision remains for Irish court. It’s not for the CJEU to rule *on the facts*. And the Irish court has power even though the Council has not decided whether to agree with Commission on RoL in Poland. 6/

A-G says (39-45) Irish court’s task (risk to individual of no fair trial) is v different from the EU tasks (serious perisistent breach of RoL by Poland) 7/

A-G says (72) real risk of denial of fair trial *isnt enough* to block extradition. Must be real risk of *flagrant* denial of fair trial. 8/

A-G says (90) lack of judicial independence *can* give rise to real risk of flagrant denial of fair trial. Points out only in Al-Nashiri v Poland (@OSFJustice case btw) that European Court of Human Rights found this 9/

Celmer argued that, where Irish Court concludes Poland’s #RuleOfLaw has broken down in general, there is no second stage of assessing specific risk to Celmer. A-G says (104) Court should reject this 10/

A-G says Irish Court can only block extradition if the general risk of flagrant denial of fair trial is shown to apply to Celmer’s facts. He adopts Commission’s examples 11/

A-G also says Irish Court *must* ask Polish Gov for info on whether Celmer would get a fair trial. 12/

Celmer wanted to defeat extradition without any evidence specific to him. That plan is dead - if CJEU agrees with A-G.

But it doesn’t mean Celmer’s case is over... 13/

Instead, Irish Court can ask Poland to explain which judges might hear his case (on trial and on any appeal), who appointed them - and what guarantees there are against political interference. 14/

Celmer’s “blanket” argument may have blocked all extraditions to Poland. But the A-G’s approach may see courts across EU quizzing PL Gov abt its judiciary & their independence. Watch that space. 15/15