The implementation of the CJEU’s Joined Cases Aranyosi and Caldararu by the UK and Irish Courts – A real impact on the protection of fundamental rights in surrender proceedings?

The revolution brought by Aranyosi and Caldararu: Upsetting the balance between efficiency and fundamental rights

From blind trust to earned trust

Introduction

Following the Aranyosi judgment and the CJEU’s subsequent formulation of a two-tier test to assess a real risk of violations of fundamental rights following surrender, ‘significant discretion is left to executing authorities in conducting their assessment of risk’. ⁵⁶ This section analyses the impact of Aranyosi at national level, examining the UK’s implementation of the two-tier test in surrender proceedings prior to Brexit under the EAW system and Extradition Act 2003. In analysing judicial decisions made by the UK Court, it argues that Aranyosi is merely a formalisation of the procedure, whereby the UK has been requesting further information and relying on assurances from requesting States for a significant period prior to Aranyosi. With assurances routinely breached, and the UK Courts not attributing weight to such breaches, there has been no real impact on the protection of fundamental rights of the person object of an EAW in the UK’s surrender proceedings.

Not only is the UK an interesting case study as it has transposed a general fundamental rights ground for refusal via Section 21 of the Extradition Act 2003 but additionally, the UK allows us to make forecasts about whether the Courts will continue to rely on the Aranyosi template after Brexit, considering that these grounds for refusal and the reasoning of the CJEU has been incorporated into the Trade and Cooperation Agreement (TCA); discussed in Extradition and fundamental rights protection under the EU-UK trade and cooperation agreement (TCA).

The UK legal framework and the human rights ground for refusal

Prior to the 31^st December 2020, the UK was bound by the FD EAW, implemented by the UK Extradition Act 2003. This Act was passed to ‘modernise and streamline the way in which extradition requests submitted to the UK are processed’. ⁵⁷ Surrender proceedings were split into two groups: Part 1 referred to surrender proceedings subject to the EAW scheme, placing a distinct emphasis on mutual trust and recognition between Member States, while Part 2 proceedings applied to all other States which the UK has surrender arrangements with. Notably, in the implementation process of the FD EAW, the UK transposed a general fundamental rights ground for non-execution whereby Section 21 of the UK’s Extradition Act 2003 requires a court to assess whether the persons surrender would be incompatible with the ECHR within the meaning of the Human Rights Act 1998.

The UK courts’ implementation of Aranyosi and Caldararu

The use of assurances outlined in Aranyosi is not a new concept; the UK Courts have accepted assurances that the requested person will not be detained in facilities where there is an abstract risk of ill-treatment prior to the Aranyosi ruling in 2016. With many countries being found to have problems with their prison estate, even before Aranyosi, assurances were described as ‘not merely normal but indispensable in the operation of English extradition law’. ⁵⁸ Thus, to ensure requested persons are not exposed to a real risk of inhuman or degrading treatment contrary to Article 3 ECHR, assurances are frequently provided, often focussing on minimum space assurances or on general conditions of detention in the facility where the individual is likely to be held.

In the context of decisions dealing with EAWs from Romania, Hungary and Italy, the UK Courts often determine the existence of risk primarily on the basis of previous ECtHR judgments against these countries, using these judgments to give legitimacy to their decisions. When the ‘risk’ involves a lack of personal space in prisons of the issuing State, the UK Courts frequently apply the criteria developed by the ECtHR in Mursic v Croatia ⁵⁹ , where the Grand Chambers held that the space factor would give rise to a ‘strong presumption’ of inhuman or degrading treatment if the ‘personal surface allocated to each prisoner falls below the minimum threshold of three metres squared in a multi-occupancy cell’. ⁶⁰ The ECtHR’s criteria has been endorsed by the CJEU in recent case law as a way to provide guidance in EAW proceedings. ⁶¹

Additionally, the finding of an abstract risk is often demonstrated by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) reports. These reports include detailed overviews of detention conditions in a Member State and are utilised as evidence in ECtHR’s judgments on Article 3 ECHR. For example, regarding Romania, a 2015 CPT report combined with ECtHR decisions, ⁶² identified ‘structural problems’ giving rise to violations of Article 3 ECHR by way of Romania’s prison conditions. Subsequently, in the 2015 case of Blaj v Court of Alesd, Romania ⁶³ , following the decisions of Florea (No. 1) v The Judicial Authority Carei Courthouse, Satu Mare County, Romania ⁶⁴ and Florea (No. 2) v Authority of Care Courthouse Saru ⁶⁵ , the Romanian authorities provided an assurance stating that all persons whose extradition was requested from England and Wales detained in an open prison would have more than two metres squared of individual space, and if detained in a closed prison would have more than three metres squared of individual space. ⁶⁶ Indeed, in a similar vein, in 2015, Hungary had an obligation to provide a minimum space assurance to the UK guaranteeing that, ‘if surrendered from England and Wales pursuant to the respective Hungarian EAWs, during any period of detention, individuals will be detained in conditions that guarantee at least three square metres of personal space’. ⁶⁷

Further, extradition cases involving Italy found that overcrowding in Italian prisons is such that an individual’s Article 3 ECHR rights would be breached if sent there. In these decisions, the court refrained from finding a concrete risk of violations of rights on the basis of assurances provided by the issuing State. For example, in Elashmawy v Court of Brescia, Italy ⁶⁸ in 2015, the Italian authorities provided an assurance that ‘Elashmawy will serve his sentence at the prisons of C.C. Torino or Biella, which are not overcrowded, and will not serve his sentence at Busto Arsizio or Piacenza or any prison that is not compliant with Article 3 ECHR’. ⁶⁹

In accepting assurances regarding the existence of ‘deficiencies that are systemic or generalised, or which may affect certain groups of people, or certain places of detention’, ⁷⁰ it seems that Aranyosi was late to the party and merely acts as an endorsement of the UK Courts’ established approach in their judicial decisions regarding poor prison conditions in issuing States. Arguably, Aranyosi has institutionalised the procedure; whilst before, the practice of seeking assurances was merely the UK Courts’ initiative in their capacity of executing authorities, Aranyosi has introduced a formal CJEU procedure which not only compels the UK Courts to directly request this further information, but also binds the issuing authorities to provide such assurances to the UK Courts.

Breach of assurances as a challenge to a real impact on the protection of fundamental rights

Nevertheless, despite the system of assurances already being in place in the UK, and Aranyosi having institutionalised the procedure, it appears that in more than one instance the system does not lead to an actual improvement of fundamental rights protection. This is because firstly, assurances are often breached, and secondly, the UK Courts do not appear to attribute weight to such breaches, maintaining trust in the relevant country in future cases.

Firstly, assurances provided to the UK Courts are not always respected and are routinely breached, implying that the UK Courts have failed to give adequate thought as to how requesting States comply with assurances in practice. For example, despite the previous minimum space assurance provided by Romania in Blaj v Court of Alesd, Romania ⁷¹ as discussed above, in the case of Rusu v Timis County Court, Romania ⁷² heard in the Westminster Magistrate Court in 2016, evidence was obtained describing the ‘deplorable’ prison conditions in Romania, which included very limited personal space and a failure by the Romanian Authorities to comply with the previous assurance given. In this instance, District Judge Purdy concluded that there was a ‘real risk of a breach of the minimum space assurance that currently exists’ and surrender was refused.

While in some cases surrender is refused due to a breach of assurance, more frequently, the UK Courts continue to rely on mutual recognition after receiving assurances, even if these have been breached in the past. This results in little protection of fundamental rights, as the individual object of an EAW is often extradited despite previous breaches of assurances. For example, in surrender proceedings with Hungary, despite breaches of assurances, the UK maintained the trust they had with the relevant country and extradited the individual anyway. For illustration, in GS and Others v Central District of Pest, Hungary ⁷³ Burnett LJ emphasised the importance of the minimum space assurance provided by Hungary, believing the assurance to be a ‘solemn diplomatic undertaking by which the Hungarian authorities consider themselves bound’. ⁷⁴ However, it transpired that in practice, there was a breach of assurance, where the Hungarian Ministry of Justice acknowledged that one of the applicants in Varga v Hungary ⁷⁵ had been detained in a cell with a net space of 2.8m for each prisoner. ⁷⁶ This raised the issue of the reliability of assurances offered by Hungary. In discussion of this breach of assurance in the 2019 judgment of Szalai v The Tribunal of Veszpre, Hungary ⁷⁷ Singh LJ stated that ‘the limited evidence of breach provided by the Appellants must be seen in its wider context’. ⁷⁸ The Court concluded that while there has been a breach of assurance, ‘this limited evidence does not demonstrate systemic problems affecting assurances given to the UK generally, nor does it undermine the mutual trust upon which the system of assurances is based’. ⁷⁹ Despite concerns regarding prison conditions in Hungary, the Court’s heavy reliance on the principle of mutual recognition and trust itself, makes it more difficult for the executing judicial authorities to postpone surrender on that ground. ⁸⁰ What becomes clear is that little has changed in the UK Courts approach to assurances following the Aranyosi judgment; even though Aranyosi has institutionalised the procedure and the UK Courts have power, under Article 15(2) FD EAW to request relevant information from foreign authorities, and those authorities are obliged to respond, ⁸¹ it is evident that these assurances are routinely breached and UK Courts continue to rely on mutual recognition after receiving assurances, even if these have been breached in the past. As a result, there is no real impact on the protection of fundamental rights.

Furthermore, as the UK’s surrender arrangements are built upon a foundation of mutual trust between other States legal orders, assurances only become necessary where the presumption that the issuing State will not violate the fundamental rights of a requested person cannot be relied upon. This presumption of compliance is illustrated in Klimas v Prosecutors General Office of Lithuania ⁸² where Mr. Justice Mitting stated that ‘as a matter of principle… when prison conditions are raised as an obstacle to extradition, the District Judge need not, save in wholly extraordinary circumstances… examine the question at all’. ⁸³ Therefore, despite demonstrating that prison conditions in Lithuania would breach Article 3 ECHR, the UK Courts refused to examine the question at all, presuming that ‘modern liberal democracies could not be guilty of ill-treatment of their detainees’. ⁸⁴ It is this presumption that arises out of mutual trust which is difficult to displace, and emphasises the high threshold associated with satisfying the second stage of the Aranyosi test. Conducting ‘holistic assessments of prison conditions’ when assessing risks posed by overcrowding, combined with the high threshold required to successfully find a violation, results in limited protection of fundamental rights in surrender proceedings. ⁸⁵ Indeed, even breaches of previous assurances are not enough to displace this presumption of mutual trust and protection of human rights. For illustration, in Georgiev v Regional Prosecutor’s Office, Shuman, Bulgaria ⁸⁶ in 2018, the High Court emphasised there is ‘a strong presumption that a requesting State is willing and able to fulfil its human rights obligations and any assurances given in support of those obligations’. ⁸⁷ Therefore, despite a Strasbourg judgment stating that Bulgarian prison conditions breached Article 3 ECHR, as well as evidence of Bulgaria breaching previous assurances on prison conditions, the High Court stated that assurances must be ‘conducted in light of the principle of mutual recognition and trust’. ⁸⁸ As such, in light of new assurances being given, the UK still permitted surrender to Bulgaria.

Arguably, this system of assurances in the UK does not seem to be working. Whilst assurances and the Aranyosi judgment aim to protect fundamental rights, these rights in practice, are far from guaranteed. There is a danger that with such a high threshold, rights become ‘theoretical and illusory’ ⁸⁹ where individuals are still extradited to countries where there is a real risk of inhuman and degrading treatment because ‘it is extremely difficult to displace the presumption of compliance’. ⁹⁰ Edward Grange has accurately highlighted that ‘assurances are now routinely provided to paper over the cracks of…dismal human rights records with regards to its conditions of detention’. ⁹¹ Ultimately, the fact that assurances are routinely breached with no recourse from the UK Courts suggests that the Aranyosi ruling, despite institutionalising the procedure of surrender, has done very little in practice to improve compliance with assurances. The UK Courts are reluctant to attribute weight to previous breaches of assurances and continue to rely on mutual recognition as the primary consideration in surrender proceedings. In creating an exceptionally high threshold to find a violation of fundamental rights, individuals are subsequently extradited and as a result, are provided with minimal fundamental rights protection.

Extradition and fundamental rights protection under the EU-UK Trade and Cooperation Agreement

This section focuses on Brexit and discusses its potential impact on the applicability of Aranyosi on future practice following the formulation of the Trade and Cooperation Agreement (TCA).

The UK formally left the EU on the 31^st January 2020, having significant implications for the UK Courts’ approach to extradition proceedings, whereby the FD EAW is no longer applicable in the UK. ⁹² Whilst the UK continued to implement the EAW system throughout the transitional period, the UK and EU ultimately came to an agreement, creating the TCA whereby Title VII, Part 3 entitled ‘Surrender’, regulates the issue of extradition. The UK implemented the TCA in national legislation with the European Union (Future Relationship) Act 2020. The TCA marks the UK’s withdrawal from the EAW system by introducing a similar, although not identical, system for fast-track extradition with the EU. ⁹³ This is beneficial to the EU in its aim of enhancing judicial cooperation in criminal matters, ⁹⁴ but is also advantageous from a UK perspective as it has been recognised that the UK are one of ‘two member states that have been most active in using … the EAW system’. ⁹⁵

Following Brexit, the TCA marks the UK’s departure from EU judicial cooperation; no longer bound by the CJEU’s decisions, the UK will develop its own approach to extradition, distinct from other EU Member States. While there are distinct differences between the FD EAW and the TCA, having practical consequences for the UK’s extradition proceedings, it remains clear that adherence to the ECHR is mandatory ⁹⁶ and as a result, rulings of the ECtHR are still applicable to extradition proceedings. This is illustrated in Article LAW.GEN.3 TCA which states, ‘cooperation…is based on… longstanding respect for democracy, the rule of law and the protection of fundamental rights and freedoms of individuals, including as set out in the Universal Declaration of Human Rights and in the ECHR.’ ⁹⁷ Therefore, it has to be seen how the UK Courts will ensure the efficiency of extradition whilst maintaining fundamental rights protection. In particular, it will be interesting to chart how the UK Courts have implemented the fundamental rights grounds for refusal initially introduced by the ECJ in its application to the TCA.

As previously stated, the UK is no longer bound by the CJEU case law and can disregard their judgments. However, we have seen that the Aranyosi ruling and use of assurances is enshrined in the TCA whereby Article LAW.SURR.84 TCA adds a further scenario in which assurances can be requested where there are ‘substantial grounds to believe that there is a real risk to the protection of the fundamental rights of the requested person’. With case law on the ‘real risk’ test and assurances being incorporated into an agreement rather than merely being discussed in case law, the UK effectively utilises a ‘procedural mechanism to facilitate ECHR compliance’. ⁹⁸

By enshrining the Aranyosi case law on the ‘real risk’ test into the TCA, we are led to believe that the UK will still rely on the Aranyosi template post-Brexit. Whilst Aranyosi adds the institutionalisation and the two-tier test as to make the procedure more formal, it is difficult to ascertain whether this will make any difference to the protection of fundamental rights. As previously argued, even when Aranyosi was in place, assurances were routinely breached and yet, the UK Court did not shy away from relying on mutual recognition and maintaining trust in the relevant countries. Thus, by relying on Aranyosi post-Brexit, through its incorporation in the TCA, it is unlikely that any real impact on the protection of fundamental rights in the UK’s surrender proceedings will be felt in practice.

Introduction

This section discusses the impact of Aranyosi on the Irish Courts. Through analysis of judicial decisions pre-Aranyosi and post-Aranyosi, it argues that while the Irish Courts retain the possibility of refusing to execute a warrant if the requested person’s fundamental rights are in jeopardy, following the Aranyosi ruling, the Irish Courts have set a very high threshold for the requested person to overcome, which rarely results in a refusal to surrender. Arguably, there has been limited real impact on the protection of fundamental rights in surrender proceedings; in presuming that the issuing State complies with the requirements set out in the FD EAW unless the contrary is shown, ⁹⁹ Ireland’s approach to surrender endorses the principles of mutual recognition and trust, in support of a single European Criminal Justice Area.

The Irish legal framework under the European Arrest Warrant Act 2003

The FD EAW was implemented by the European Arrest Warrant Act 2003, which consequently provides the legal basis for the execution of EAWs in Ireland. The Act prescribes the form of the EAW and the necessary supporting documentation to execute an EAW. These are transmitted to the Minister for Justice, Equality and Law Reform in its appointment as the administrative central authority in Ireland. ¹⁰⁰ Subsequently, an application will be made to the High Court as the designated executing judicial authority. ¹⁰¹ This means every EAW in which the requested person does not consent to surrender is subjected to a High Court trial and judgment. Remarkably, in their implementation legislation, Ireland has transposed Article 1(3) FD EAW in such a way that in accordance with Section 37 European Arrest Warrant Act 2003, an executing Irish judicial authority must refuse surrender where it would be incompatible with the ECHR or the Constitution of Ireland.

Irish courts’ decisions pre-Aranyosi: Tilting the balance in favour of mutual recognition and trust, to the detriment of fundamental rights protection

In approaching surrender prior to 2016, the Irish Courts have embraced the principle of mutual recognition and trust with confidence, imposing a heavy burden on a respondent who contests that the issuing State does not satisfy the requisite fundamental rights standards. The Irish Courts placed a distinct emphasis on the presumption that the issuing State complies with ECHR standards and general principles of EU law by offering equivalent standards of fundamental rights protection as the Constitution of Ireland. This is illustrated in Minister for Justice and Equality v Altaravicius (No.2) ¹⁰² where it was held that ‘while one would not go as far as to say that it must be ‘something overwhelming’ in order to rebut such a presumption, the evidence adduced would have to be clear, cogent and material.’ ¹⁰³ The Irish Courts willingness to accept standards in other Member States as equivalent to their own, places a high threshold on the person object of an EAW to successfully prove a violation of Article 3 ECHR. ¹⁰⁴

For example, in the 2007 case of Minister for Justice and Equality v Busjeva, ¹⁰⁵ CPT reports from 2002 and 2004 proved that detention conditions in Lithuania were so substandard that they would violate Article 3 ECHR. Despite these findings, the Irish High Court noted that Lithuania’s reform programme, combined with high levels of trust and confidence between EU Member States, meant that it is only in ‘exceptional circumstances and on foot of clear cogent evidence’ that the court could determine that surrender would breach the ECHR. As such, the challenge to surrender was rejected. Thus, prior to Aranyosi, the Irish Court participated in ‘an enthusiastic endorsement of the principles of mutual recognition and trust’, ¹⁰⁶ which resulted in Irish citizens being surrendered to Member States whose criminal prosecution processes fall below established Irish constitutional norms. ¹⁰⁷

Irish courts’ decisions post-Aranyosi: Limited fundamental rights protection

Following Aranyosi, the Irish Court continues to set a very high threshold for the requested person to surmount in order to find a violation of Article 3 ECHR and this will only be satisfied in exceptional circumstances. Arguably, while there has been a firm reliance on Aranyosi, the courts are very robust in their application, which does not necessarily result in a refusal to surrender.

This high threshold to overcome is illustrated in the 2019 case Minister for Justice and Equality v Kerrigan ¹⁰⁸ (hereafter, Kerrigan). In this case, the respondent objected to surrender to the UK for the purpose of prosecution for murder and attempted murder, stating that if surrendered, he would be subjected to a real risk of violation of Article 3 ECHR, which consequently, would breach Section 37 of the 2003 Act. In highlighting principles which are ‘broadly the same’, ¹⁰⁹ Mr. Justice Binchy referenced both the CJEU’s Aranyosi ruling and the Irish Supreme Court ruling in Minister for Justice and Equality v Rettinger. ¹¹⁰ He reiterated that while Aranyosi necessitates a ‘real risk’, Rettinger requires that the ‘risk of inhuman or degrading treatment need not be a probability, but must be more than a mere possibility’. ¹¹¹ Therefore, in Kerrigan ¹¹² , despite reports of the Chief Inspector clearly constituting ‘updated, objective and reliable evidence’, ¹¹³ it was held that the finding of a risk of inter-prisoner violence ‘falls a long way short of constituting substantial grounds for believing that an individual would be exposed to a real risk of inhuman and degrading treatment’. ¹¹⁴ The court differentiated this case from Minister for Justice and Equality v RO ¹¹⁵ (hereafter, RO) where Donnelly J relied on the particular vulnerabilities of the respondent to find the respondent had adduced ‘cogent evidence to establish a real risk of being subjected to treatment prohibited by Article 3 ECHR’. ¹¹⁶ As such, she sought further information from the issuing judicial authority under Section 20(1) of the 2003 Act regarding the conditions in which the respondent would be held. RO ¹¹⁷ is a rare case in which a potential breach of Article 3 ECHR was found, emphasising the high threshold that respondents need to overcome; it was only on the merit of the respondent’s particular vulnerabilities that this potential violation was found. Thus, in Kerrigan ¹¹⁸ , Mr. Justice Binchy highlights that RO ¹¹⁹ is ‘confined to its own facts’, ¹²⁰ arguing that the prisoner safety problems in and of themselves in RO ¹²¹ would not have been sufficient for Donnelly J to seek the additional information she did. Therefore, in Kerrigan ¹²² , it was ultimately held that the respondent failed to put forward any objective evidence that ‘he personally is at a greater risk than anybody else in the prison population (such as was available to the court in RO). ¹²³ This, combined with the ‘presumption that the requesting States will respect the fundamental rights of the requested person’ ¹²⁴ resulted in the surrender of the respondent being ordered to the UK.

As emphasised by McDermott J in the 2020 decision of Minister for Justice and Equality v Pal ¹²⁵ the threshold which a respondent must meet to prevent surrender ‘is not a low one’, ¹²⁶ whereby the respondent must establish cogent evidence that there is a real risk of inhuman or degrading treatment in breach of Article 3 ECHR. For illustration, in Minister for Justice and Equality v Jaworski ¹²⁷ in 2017, the court relied on specific evidence from the issuing State which proved that the ‘prison staff did not have any concerns regarding the conditions of the institution but were greatly satisfied with them’ concluding that ‘all penitentiary units observe European norms’. ¹²⁸ Further, believing the ‘evidence has been put forward at a level of generality’ ¹²⁹ , it was held that the respondent failed to meet the threshold established in Aranyosi; there was no real risk of the particular respondent being subjected to inhuman and degrading treatment by virtue of prison conditions and thus, his surrender was not prohibited under Section 37 of the 2003 Act.

Furthermore, Minister for Justice and Equality v Tache ¹³⁰ (hereafter, Tache) illustrates that whilst the Irish Courts frequently engage with the Aranyosi ruling in their judgments, this high threshold rarely results in a refusal to surrender. In this case, following an application for the surrender of the respondent to Romania pursuant to an EAW, the court received ‘express assurances as to how the respondent will be housed in detention’ ¹³¹ in accordance with the procedure identified in Aranyosi and Article 15(2) FD EAW (as implemented by Section 20 of the 2003 Act). Interestingly, this case placed significant emphasis on the ECtHR’s pilot judgment Rezmives and others v Romania ¹³² which concerned prison conditions in Romania. Referring to CPT reports, the judgment acknowledged that the Romanian Government to the Committee of Ministers had implemented a series of actions to address several problems and make certain improvements to detention conditions. As such, it was held in Tache ¹³³ that these improvements, combined with express assurances from ‘a Member State of the EU’ meant that ‘the principle of mutual trust applies to the receipt of that information’, and thus, the respondent’s objections to surrender were rejected. ¹³⁴ This illustrates that whilst Aranyosi is frequently referenced in the Irish High Court’s rulings, this has not resulted in a real impact in terms of outcomes for those being surrendered. In practice, the high threshold set by Ireland, particularly in relation to the second stage of the test, results in very few cases in which surrender has actually been refused on the grounds of inhuman and degrading treatment contrary to Article 3 ECHR.

A controversial and ground-breaking decision is the Irish High Court’s case of Minister for Justice and Equality v Celmer (No 5). ¹³⁵ In this context, a preliminary ruling was made to the CJEU which led to the LM case. ¹³⁶ Following the requirement of tribunals to be ‘independent and impartial’ ¹³⁷ , the CJEU extended Aranyosi as the test to be followed when assessing a real risk of violations of the rule of law and the right to a fair trial under Article 47 CFR.

The Celmer litigation effectively stresses the political element of the principle of mutual trust ¹³⁸ which arguably is laid in its social dimension. ¹³⁹ Following a proposal for the respondent’s surrender to Poland, it was demonstrated that, following the 2015 elections, the Polish Government, Parliament and President adopted a series of reforms that have ‘blurred the boundaries between the executive and the judiciary’, ¹⁴⁰ posing the fundamental question of whether Poland still adhered to Article 2 TEU. The first stage of the Aranyosi test was not contested; relying on the Reasoned Proposal of the Commission ¹⁴¹ , the Irish High Court highlighted the general deficiencies concerning the Polish judiciary whereby the ‘rule of law in Poland has been systematically damaged by the cumulative impact of legislative changes over the last 2 years’. ¹⁴² However, the substantial burden placed on the respondent in evaluation of the second stage of the Aranyosi test remained, where it was ruled that ‘systematic deficiencies in themselves do not establish a real risk to the suspects right to fair trial’. ¹⁴³ Indeed, the Irish High Court aligned itself with the ECtHR’s ‘flagrant denial of justice’ test stating ‘it is inconceivable that the CJEU were amending the well-settled test by implication’, ¹⁴⁴ arguing that if the CJEU were to depart from the ‘flagrant denial of justice’ test, they would have ‘expressly stated so’. ¹⁴⁵ Ultimately, the High Court rejected that Mr. Celmer would individually and specifically face a flagrant denial of justice. It was held that general rule of law concerns will not automatically lead to a flagrant denial of justice ¹⁴⁶ and the structural and widespread flaws in Poland’s justice system did not pose a real threat to Mr. Celmer’s right to a fair trial.

As such, the High Court emphasised that the threshold set by the CJEU in LM is a high one, and considering evidence, had not been reached. Despite the general and systemic problems surrounding judicial independence in Poland, with such a high threshold to amount to a violation, there was little the High Court could do to prevent the potential impact on the suspect. Thus, this judicial test has been characterised as ‘inoperable’ ¹⁴⁷ as Aranyosi sets such a high standard for the respondent to overcome and prove a violation of Article 3 ECHR. Further, in discussion of the procedure identified in Aranyosi and Article 15(2) FD EAW, a serious issue arises as to how precise and concrete assurances from an issuing judicial authority must be, where the following question has been posed: ‘would assurances of independence issued by a national court that is not independent, discount the doubts of a court asked to entertain a request for surrender?’ ¹⁴⁸ Ultimately, in placing a distinct emphasis on mutual trust and recognition and setting such a high threshold to satisfy the second stage of the Aranyosi test, the Irish Court has arguably failed to protect the respondent’s fundamental rights in surrender proceedings.

However, interestingly, in the preliminary ruling, the Irish Court questioned how the principles of mutual trust and mutual recognition can operate when there are systemic defects in the Polish legal system. Donnelly J stated that ‘where there are such egregious defects in the system of justice, it appears unrealistic to require a requested person to go further and demonstrate how, in their individual case, these defects will affect their specific trial’. ¹⁴⁹ As such, in a successful finding of a violation of the rule of law, Donnelly J states the premise of Aranyosi is ‘arguably flawed’. ¹⁵⁰ It may be this criticism of the LM ruling that has encouraged some signs of change in the Irish Court’s assessment of Article 3 ECHR violations. A positive sentiment for the protection of fundamental rights has been illustrated in the 2020 case of Minister for Justice and Equality v Dicu ¹⁵¹ where it was held that surrender to Romania would be contrary to Section 37 of the Act of 2003. Like in Tache ¹⁵² , the respondent relied on the ECtHR pilot judgment of Rezmives and others v Romania ¹⁵³ which found that between 2007 and 2012, ninety-three judgments found violations of fundamental rights, the majority concerning overcrowding and other aspects linked to conditions of detention. ¹⁵⁴ Additionally, Simulescu and others v Romania ¹⁵⁵ and Calin and others v Romania ¹⁵⁶ emphasised that ‘a serious lack of space in prison cells weighs heavily as a factor to be taken into account for establishing whether detention conditions are ‘degrading’ from the point of view of Article 3 ECHR’. ¹⁵⁷ Moreover, the Irish Court rejected assurances provided by the Ministry of Justice of Romania following their ‘track record of not complying with such assurances’. ¹⁵⁸ Interestingly, the court also relied on the decision of the Westminster Magistrates Court in Rusu v Romania, which brought evidence from eleven former prisoners as to breaches of assurances given to the UK Courts. As a result, the Irish Court concluded that the ‘combination of inadequate personal space’ ¹⁵⁹ coupled with evidence of ‘grievances related to some of the most fundamental human needs’ ¹⁶⁰ constituted a real risk that the respondent would be exposed to conditions of detention which would violate Article 3 ECHR. This case highlights a broadening of the types of evidence the Irish Court are beginning to consider when determining violations of fundamental rights, in that prisoner testimonies are now being used as evidence. Indeed, not only does the heavy reliance on ECtHR judgments create an interesting dialogue between the ECtHR and national courts, but what is even more noteworthy is the increased dialogue between domestic courts of different States, in particular the UK Courts and their judgments.

With the Irish Court placing a distinct emphasis on the ‘default presumption that the requesting country will act in good faith and respect the person’s fundamental rights’, ¹⁶¹ case law illustrates that ‘whilst this presumption can be rebutted, such a conclusion will not be reached lightly’. ¹⁶² While a larger realm for providing evidence may allow respondents to see more significant opportunities to meet the CJEU’s threshold for determining a real risk of inhuman or degrading treatment as set out in Aranyosi, any real impact on the protection of fundamental rights in surrender proceedings is yet to be seen and will be determined in the coming years.