Minister for Justice & Equality v Orlowski; Minister for Justice & Equality v Lyszkiewicz (Approved)

Factual and Procedural Background

The Supreme Court of Ireland previously delivered judgment on 23 July 2021 in two consolidated appeals concerning the surrender of Appellant 1 and Appellant 2 to Poland under European Arrest Warrants (EAWs). The appellants resisted surrender on the basis that systemic deficiencies in the Polish judicial appointment process posed a real risk to their right to a fair trial. After that 2021 judgment the Court referred three questions to the Court of Justice of the European Union (CJEU). Following the CJEU’s reasoned order of 22 February 2022 in X and Y v Openbaar Ministerie, the Supreme Court withdrew the first two questions but maintained the third, which asked whether the absence of an effective remedy to challenge the validity of judicial appointments in Poland required refusal of surrender. The CJEU responded by reasoned order, clarifying the applicable two-step test under LM and Openbaar. After receiving further written and oral submissions, the Supreme Court now issues the present decision.

Legal Issues Presented

1. Whether, in light of the CJEU’s clarification in Openbaar, the absence of an effective domestic remedy in Poland to challenge the validity of judicial appointments creates a case-specific real risk that the appellants’ fundamental right to a fair trial will be breached, thereby obliging the Irish courts to refuse surrender under the EAW Framework Decision.

Arguments of the Parties

Appellants’ Arguments

• There is no effective procedure in Poland to challenge the composition of a trial court; this undermines the essence of the right to a fair trial.
• Because case allocation in Poland is random, the appellants cannot identify their judges in advance, placing them in a “Catch-22” that prevents them from producing judge-specific evidence.
• Systemic deficiencies in Polish judicial appointments, highlighted by the European Court of Human Rights in Grzęda v Poland, justify refusal of surrender.
• The Supreme Court should invoke section 20 of the European Arrest Warrant Act 2003 to seek further information from Polish authorities.

Respondent’s Arguments

• Under LM and Openbaar, a generalised defect in the issuing state is insufficient; a case-specific analysis is mandatory.
• Unknown future composition of the trial court does not dispense with the appellants’ obligation to adduce evidence of a concrete risk.
• The inability to apply for recusal is only one factor in the overall assessment and, standing alone, cannot ground refusal.
• Neither appellant produced any evidence linking the systemic deficiencies to their personal circumstances or to the nature of their offences; therefore, refusal of surrender is unwarranted.

Table of Precedents Cited

Court's Reasoning and Analysis

1. Applicable Legal Standard. Relying on the CJEU’s jurisprudence in LM and Openbaar, the Court reiterated that an Irish executing court must:

1. Identify “objective, reliable, specific and duly updated material” showing systemic or generalised deficiencies in the issuing state; and
2. Determine whether, in the particular circumstances of the person concerned, those deficiencies create a real risk of breach of the fundamental right to a fair trial.

2. Assessment of Systemic Deficiencies. The Court accepted that troubling systemic issues exist in the Polish appointment process, but emphasised that refusals to execute EAWs are exceptional and require strict interpretation.

3. Case-Specific Evaluation. The appellants supplied no concrete evidence that the trial judges likely to preside over their cases were appointed under the impugned procedure, nor evidence showing how any such appointment would tangibly prejudice their trials.

4. Unknown Court Composition. Following the CJEU’s finding that the inability to know the future trial panel “cannot in itself be sufficient” to refuse surrender, the Court rejected the argument that the appellants’ current ignorance absolved them from producing case-specific evidence.

5. Ineffective Remedy Argument. While acknowledging the absence of a domestic remedy to challenge judicial appointments, the Court held—again per Openbaar—that this factor is only part of a holistic assessment and, without more, does not satisfy the second limb of the test.

6. Futility of Further Inquiries. The Court declined to seek additional information under section 20 of the 2003 Act, reasoning that no further evidence could be procured that would bridge the appellants’ failure to establish a case-specific risk.

Holding and Implications

ORDER: The Court directs the surrender of Appellant 1 and Appellant 2 to the Republic of Poland pursuant to the European Arrest Warrants.

Implications: The decision confirms that, notwithstanding acknowledged systemic concerns about the rule of law in Poland, Irish courts will refuse surrender only where an individual can adduce evidence showing a particularised risk to his or her fair-trial rights. The ruling applies existing CJEU authority; it does not create new precedent but underscores the high evidentiary threshold for resisting surrender on systemic-deficiency grounds.