High Court of Ireland Decisions

Judgment Title: MJELR -v- Mc Guinness

Neutral Citation: [2011] IEHC 289


High Court Record Number: 2010 434 EXT

Date of Delivery: 15/07/2011

Court: High Court

JUDGMENT of Mr Justice Edwards delivered on the 15th day of July 2011

Introduction.
The respondent is the subject of a European Arrest Warrant issued by the Kingdom of Belgium on the 1st of September, 2010. This warrant was subsequently endorsed for execution by the High Court on the 26th of November, 2010 in this jurisdiction. The respondent was arrested on the 31st of January, 2011 by Garda Sean Fallon at Navan District Court House in Navan, County Meath, but does not consent to his surrender to the Belgian state. Accordingly, this Court is now being asked by the applicant to make an Order pursuant to s. 16 of the European Arrest Warrant Act, 2003 as amended (hereinafter referred to as “the Act of 2003”) directing that the respondent be surrendered to such person as is duly authorised by the issuing state to receive him. In the circumstances the Court must enquire whether it is appropriate to do so having regard to the terms of s.16 of the Act of 2003.

His surrender is sought, according to the applicant, so that he may serve an outstanding sentence of seven years imposed upon him by the High Court of Ghent on the 18th January 2010 in respect of twenty-one offences of which he has been convicted in Belgium and which are particularised in that warrant. In respect of these offences, the issuing judicial authority has indicated that they are in the nature of “burglary, housebreaking or false keys” and “being lead persons of a criminal organization”. At Part E.I. of the warrant, the boxes relating to “participation in a criminal organization” and “organized or armed robbery”, respectively, are ticked. Moreover, there is no entry in Part E. II. and so the ticked boxes relate to all twenty one offences. Accordingly, the issuing state has sought to invoke paragraph 2 of article 2 of the Framework Decision in respect of all twenty one offences. Thus, s.38 (1) (b) of the Act of 2003 applies, and providing the requirements of that provision with respect to minimum gravity are met, correspondence does not require to be demonstrated. As an aggregate sentence of seven years imprisonment has been imposed on the respondent those requirements are clearly met.

The respondent, as is his entitlement, does not concede that any of the requirements of s. 16 aforesaid are satisfied. Accordingly, as no admissions have been made, the Court is put on inquiry as to whether the requirements of s. 16 of the Act of 2003, both controversial and uncontroversial, have been satisfied and this Court’s jurisdiction to make an order directing that the respondent be surrendered is dependant upon a judicial finding that they have been so satisfied. In so far as specific points of objection are concerned, the Court is required to consider a single and net point of objection which it is convenient to summarize in the following way.

The respondent objects to being surrendered to the issuing state in circumstances where, he says, his surrender cannot be effected “in accordance with the Framework Decision” as is required by s. 10 of the Act of 2003. The contention that his surrender cannot be effected “in accordance with the Framework Decision” is based in turn upon an assertion that he has no entitlement to legal aid in “accordance with national law” for the purpose of contesting his surrender to the issuing State, and which he maintains is an express requirement of Article 11.2 of the Framework Decision, and an implied requirement of Article 47 of the Charter of Fundamental Rights of the European Union (hereinafter “the Charter”). In particular, he contends that the possibility of availing of the Attorney General’s Scheme (hereinafter “the A.G.’s Scheme” or “the Scheme”) does not represent a sufficient discharge of the State’s obligation to provide him with legal aid in accordance with national law because the A.G.’s Scheme is an administrative scheme only and is non-statutory.

Uncontroversial s. 16 issues
The Court has received an affidavit of Garda Sean Fallon sworn on the 30th of March, 2011 and has also received and scrutinised a copy of the European Arrest Warrant in this case. Moreover the Court has also inspected the original European Arrest Warrant which is on the Court’s file and notes that it bears this Court’s endorsement. The Court is satisfied following its consideration of this evidence and documentation that:

(a) the person before it is the person in respect of whom the European Arrest Warrant was issued;

(b) the European Arrest Warrant has been endorsed for execution in accordance with s. 13 of the Act of 2003;

(c) the European Arrest Warrant is in the correct form;

(d) no issue arises in the circumstances of this case as to trial in absentia such as to require an undertaking under s. 45 of the Act of 2003;

(e) the High Court is not required, under s. 21A, 22, 23, or 24 (inserted by ss. 79, 80, 81 and 82 of the Criminal Justice (Terrorist Offences) Act 2005), to refuse to surrender the respondent under the Act of 2003;

(f) save for the specific objection that has been raised which is dealt with later in this judgment, the surrender of the respondent is not otherwise prohibited by Part 3 of the Act of 2003 or by the Framework Decision (including the recitals thereto).

In addition the Court is satisfied to note the existence of the European Arrest Warrant Act 2003 (Designated Member States) Order 2004, S.I. 4/2004 (hereinafter referred to as “the 2004 Designation Order”), and duly notes that by a combination of s 3(1) of the Act of 2003, and article 2 of, and the Schedule to, the 2004 Designation Order Belgium is designated for the purposes of the Act of 2003 as being a state that has under its national law given effect to the Framework Decision.

Evidence in support of the respondent’s objection.
The respondent relies upon an affidavit sworn by his solicitor Anne Dolan, sworn on the 29th of March 2011, paragraphs 2 to 5 of which are in the following terms:

“2. My client, Mr McGuinness, advises me and I believe that he lacks the requisite financial resources to fund the defence of these proceedings…. . Mr McGuinness completed a Criminal Legal Aid Statement of Means form, upon which marked with the letters "A.D." I have endorsed my name prior to the swearing hereof, in which he confirms his comparative impecuniosity. Notwithstanding, I have agreed to act for him, to secure him Legal Aid, to which counsel advises he is entitled on the basis of Article 11 (2) of the Framework Decision in conjunction with section 10 of the EAW Act 2003.

3. It appears and I am so advised that neither of the two statutory legal aid regimes apply to him. Should the Minister contend to the contrary, I await hearing what he has to say on this point.

4. I also am so advised that the non-statutory AG's scheme is not a form of legal assistance envisaged by the Framework Decision and, in consequence, Mr McGuinness is surrender cannot be directed herein.

5. Counsel who was involved in two cases where those who obtained recommendations under the AG's scheme were compelled to prosecute judicial review proceedings to obtain payment under the scheme has identified them to me as the proceedings described in the notice of opposition herein. Should the Minister seek to contradict this averment, I will endeavour to obtain confirmatory affidavits from the two solicitors involved in those cases [solicitors then named]. Leave in both instances was granted by the Honourable Mr Justice Peart. I suggest that the Minister should make full disclosure of the files of those two judicial reviews which I am advised were eventually compromised by the Minister before the trial dates. Full disclosure of these by the Minister would relieve Mr McGuinness of the difficulty of seeking third-party discovery.”

Constitutional and relevant domestic and european legislative provisions

Article 15.2.10 of the Constitution of Ireland provides:

“The sole and exclusive power of making laws for the State is hereby vested in Oireachtas: no other legislative authority has power to make laws for the State.”

Section 10 of the Act of 2003 provides (to the extent relevant):

10.—Where a judicial authority in an issuing state issues a European arrest warrant in respect of a person—

(a) [not relevant], or

(b) [not relevant], or

(c) [not relevant], or

(d) on whom a sentence of imprisonment or detention has been imposed in that state in respect of an offence to which the European arrest warrant relates,

that person shall, subject to and in accordance with the provisions of this Act and the Framework Decision, be arrested and surrendered to the issuing state.”

S. 13(4) of the Act of 2003 provides (to the extent relevant):

“(4) A person arrested under a European arrest warrant shall, upon his or her arrest, be informed of his or her right to—

(a) (not relevant),

(b) obtain, or be provided with, professional legal advice and representation, and

(c) (not relevant).”

Article 11.2 of the Framework Decision provides:

“A requested person who is arrested for the purpose of the execution of a European arrest warrant shall have a right to be assisted by a legal counsel and by an interpreter in accordance with the national law of the executing Member State.”

Article 6 of the European Convention on Human Rights (hereinafter “the Convention”) provides:

“1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

3. Everyone charged with a criminal offence has the following minimum rights:


(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;

(b) to have adequate time and facilities for the preparation of his defence;

(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

(e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.”

Article 6 of the Treaty on European Union as amended by the Lisbon Treaty (hereinafter TEU) provides:-

“The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adapted at Strasbourg, on 12 December 2007, which shall have the same legal value as the Treaties.

The provisions of the Charter shall not extend in any way the competences of the Union as defined in the Treaties.

The rights, freedoms and principles in the Charter shall be interpreted in accordance with the general provisions in Title VII of the Charter governing its interpretation and application and with due regard to the explanations referred to in the Charter, that set out the sources of those provisions.”

Article 47 of Charter provides:

“Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.

Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented.

Legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice.”

For completeness, it should also be noted that Article 48 of the Charter provides:

“1. Everyone who has been charged shall be presumed innocent until proved guilty according to law.

2. Respect for the rights of the defence of anyone who has been charged shall be guaranteed.”

The reference in Article 6 TEU to explanations referred to in the Charter is a reference to an explanatory memorandum prepared under the authority of the Praesidium of the Convention which drafted the Charter, and promulgated in connection therewith. This explanatory memorandum is entitled Explanations Relating to the Charter of Fundamental Rights (O.J. 14.12.2007 – 2007/C303/02 [EN C303/17]) (hereinafter referred to for convenience as the “explanations document”). The explanations document says the following with respect to Article 47 (paragraphs 2 & 3) and Article 48 quoted above:

“Explanation on Article 47 — Right to an effective remedy and to a fair trial

………..

The second paragraph corresponds to Article 6(1) of the ECHR …[Article 6(1) of the Convention then recited].

In Union law, the right to a fair hearing is not confined to disputes relating to civil law rights and obligations. That is one of the consequences of the fact that the Union is a community based on the rule of law as stated by the Court in Case 294/83,‘Les Verts’ v European Parliament (judgment of 23 April 1986, [1986] ECR 1339). Nevertheless, in all respects other than their scope, the guarantees afforded by the ECHR apply in a similar way to the Union.

With regard to the third paragraph, it should be noted that in accordance with the case-law of the European Court of Human Rights, provision should be made for legal aid where the absence of such aid would make it impossible to ensure an effective remedy (ECHR judgment of 9 October 1979, Airey, Series A, Volume 32, p. 11). There is also a system of legal assistance for cases before the Court of Justice of the European Union.

Explanation on Article 48 — Presumption of innocence and right of defence

Article 48 is the same as Article 6(2) and (3) of the ECHR …[Article 6(2) and (3) of the Convention then recited].

In accordance with Article 52(3), this right has the same meaning and scope as the right guaranteed by the ECHR.”

The respondent’s submissions in support of his objection

The respondent submits that Ireland is in breach of its obligations under Article 11.2 of the Framework Decision, when read in conjunction with Article 47 of the Charter. Accordingly, the respondent objects to his surrender under s.10 of the Act of 2003, which stipulates that an individual may be surrendered only where the State has complied with both the provisions of the Act and its obligations under the Framework Decision.

The crux of respondent’s argument is that, where an E.U. Framework Decision or Directive requires a Member State to enact a measure “in accordance with national law”, this must be done by statute or by statutory instrument. He argues that it must be so because Article 15.2.10 of the Constitution of Ireland provides that only the Oireachtas has the power to make laws. He draws further support for this proposition, if support were needed, from various recent English decisions which are cited in his written submissions. As the Court accepts the general proposition that only parliament (in our case the Oireachtas) can enact law it is not necessary to quote from the cases cited. It is sufficient to merely identify them. The cases relied on were M.O. Nigeria v Secretary of State [2009] 1 WLR 1230; F.A. (Iraq) v Secretary of State [2010] 1 WLR 2545 and Pankina v Secretary of State [2010] 1 W.L.R. 1526.

Accordingly, the respondent contends that the Attorney General’s scheme does not represent an effective transposition or implementation in Irish law of the obligation imposed by Article 11.2 of the Framework Decision because the Attorney General’s scheme is an administrative scheme only and it does not have the force of law. It does not have the force of law because the Attorney General has no authority to make law generally and, in this specific instance, no delegated law-making authority the Oireachtas not having seen fit to grant her that authority.

The respondent further argues in the alternative that even if this Court were to consider that the Attorney General’s scheme does enjoy the status of “national law” within the meaning of Article 11.2, that scheme still does not constitute or represent an effective transposition or implementation in Irish law of the obligation imposed by Article 11.2. The respondent maintains that any measure intended to transpose or implement a provision of E.U. law within domestic law must comply with the dual requirements of equivalence and effectiveness. It is submitted on behalf of the respondent that the Attorney General’s scheme is neither equivalent to what is envisaged by Article 11.2 nor does it constitute an effective discharge of the obligation created by that provision. With regard to the non-effectiveness contention the respondent relies on the evidence set forth in paragraph 5 of the affidavit of Anne Dolan sworn on the 29th of March 2011.

Further, the respondent, correctly anticipating that the applicant would seek to rely upon the recent judgment of the Supreme Court in the case of Minister for Justice, Equality and Law Reform v Olsson [2001] IESC 1, contends that the Olsson case is distinguishable and does provide an answer to the objection that he has raised in these proceedings. He suggests that Olsson is distinguishable on grounds that the Court was primarily concerned in that case with whether, proceeding on the assumption that a person facing surrender on foot of a European Arrest Warrant has an entitlement to the provision of legal assistance as of right, the legal assistance available and offered to the appellant under the A.G.’s scheme represented the provision of legal assistance as of right. He contends that the point in the present case, namely that the State is obliged under Article 11.2 of the Framework Decision, alternatively under that provision read in conjunction with Article 47 of the Charter, to provide a statutory legal scheme for persons facing surrender on foot of a European Arrest Warrant, was not argued before the Supreme Court in Olsson, and that any remarks in the judgment in that case suggesting the contrary were obiter dictum and do not bind this Court..

The applicant’s submissions in reply to the respondent’s arguments

Counsel for the applicant has submitted that the respondent’s main argument contains a fundamental fallacy, and it is this. His argument is predicated on a belief that Article 11.2 of the Framework Decision, either on its own or in conjunction with Article 47 of the Charter, requires that a respondent facing surrender on foot of a European Arrest Warrant be provided with legal aid under national law. Mr McGillicuddy B.L. says that Article 11.2 of the Framework Decision does not in fact create such a right, either on its own, or when read in conjunction with Article 47 of the Charter.

He contended, in the course of unfolding his argument, that for the respondent to be correct, the first thing he would have to demonstrate is that under some instrument of European law there is a requirement that his client should be provided with statutory legal aid. He says that before this Court could entertain any argument concerning either effectiveness or equivalence it would have to be satisfied that such a right exists. Mr McGillicuddy argues that such a right is not to be found in any consideration of the Framework Decision, or the Charter, or the Framework Decision and Charter when read together, or under the Convention , or under the EU Treaties. It is simply not to be found in any of those instruments.

Proceeding then to deal specifically with the respondent’s contention that such a right is to be found in Article 11.2 of the Framework decision he makes the following points.

First, the Framework Decision does not have direct effect. It only has effect in the way that it has been incorporated into Irish law by means of the Act of 2003. He contends that this is made clear in the judgments of the Supreme Court in Minister for Justice, Equality and Law Reform v. Altaravicius [2006] 3 IR 148.

Secondly, it is for the Irish Courts to make determinations on the incorporation, meaning and effect of the Framework Decision for our law. This is because Ireland has opted out of the possibility of seeking preliminary rulings from the European Court of Justice concerning how the Framework Decision is to be interpreted. In those circumstances the Supreme Court’s views as to how the Framework Decision is to be interpreted in any particular respect are binding on this Court.

Thirdly, the Supreme Court has already ruled on how Article 11.2 of the Framework Decision is to be interpreted in the course of its judgment in Minister for Justice, Equality and Law Reform v Olsson [2011] IESC 1. The context in which this ruling was given is made clear by O’Donnell J in giving judgment on behalf of the Court in that case. He stated:

“…..the point argued in this appeal is limited to the contention that the provision of legal assistance under the terms of the Scheme falls short of what is required by law for a person whose return is requested pursuant to a European arrest warrant.

The appellant’s case in this appeal depends on an interpretation of the Framework Decision and Act of 2003, as amended.”

Then, having rehearsed the proper approach to such a question as specified in the judgment of Murray C.J. in Altaravicius, O’Donnell J stated with respect to Article 11.2:

“Article 11.2 of the Framework Decision provides that a requested person has a ‘right to be assisted by a legal counsel … in accordance with the national law of the executing Member State’.

The Framework Decision there imposes no obligation on the requested state to provide legal aid, whether as of right, or otherwise. It merely provides for a right of representation; and then only in accordance with the national law of the executing member state.”

Counsel for the applicant argues that this represents the clear and unequivocal opinion of the Supreme Court that the Framework Decision imposes no obligation on the requested state to provide legal aid in European Arrest Warrant matters. He contends that it is part of the ratio decidendi of that case, and that there are no valid circumstances in which the Olsson case can be distinguished from the present case in so far as that issue is concerned.

Mr McGillicuddy then goes on to make a subsidiary point based upon another passage from the judgment of O’Donnell J. To appreciate the point in question it is first of all necessary for this Court to quote the relevant passage. Immediately following on from the passages just quoted above, O’Donnell J said:

“The appellant argues, however, that the Act of 2003 imposes a more extensive obligation. The appellant points to s.13 (4) of the Act of 2003 which provides inter alia:-

‘A person arrested under a European arrest warrant shall, upon his or her arrest, be informed of his or her right to –
…

(b) obtain, or be provided with, professional legal advice and representation, and

(c) where appropriate, obtain, or be provided with, the services of an interpreter.’

In essence, therefore, the appellant contends that s.13 (4) recognises a right to be provided with professional legal advice and representation.”

Responding to this further argument O’Donnell J went on to say:

“Section 13(4) is limited in its own terms. Insomuch as the subsection imposes any obligation, it is as to the provision of information on arrest. The information required to be provided assumes the existence of a right to be provided with a lawyer and, if appropriate, an interpreter. No other provision of the Act however confers, or even refers to, a right to be provided with either a lawyer or an interpreter, and as was made clear in Minister for Justice, Equality and Law Reform v. Altaravicius, the Framework Decision cannot be the source of any such right. There was, therefore, much debate in the parties’ written submissions as to the source of any such right, and whether it was statutory or constitutional in origin or derived in some way from the European Convention on Human Rights. It is, however, not necessary to resolve that matter for the purposes of this appeal. The respondent on this appeal did not seek to argue that the reference in s.13(4) was an error, and/or that there was no right to be provided with legal assistance. In those circumstances, this appeal has proceeded upon the same assumption as that made by s.13(4), namely, that there is a right to have legal assistance provided in appropriate cases. That being so, the precise derivation of any such right is not relevant to the resolution of the issue in this case: the only question is whether what was unambiguously made available and offered to the appellant (that is legal assistance under the Scheme) was the provision of legal assistance as of right, there being no suggestion that s.13 (4) was not otherwise complied with, in that the appellant was, it appears, informed of the ability to obtain legal assistance under the Scheme.”

It was ultimately held by the Supreme Court in Olsson that where legal assistance is provided under the Attorney General’s Scheme in European Arrest Warrant cases it is provided as of right. In that regard, O’Donnell J stated:

“In these proceedings an affidavit was sworn by Mr. Jevon Alcock, a solicitor in the Chief State Solicitor’s Office instructed in this case on behalf of the Attorney General. At paragraph 10 of that affidavit he states:-

‘I say and believe and I am so informed that while the Attorney General’s Scheme is described as an ex gratia scheme and reference is made to a residual discretion, in all European Arrest Warrant cases, which are a special case by reason of the Act of 2003, that discretion is exercised in only one way. The person who is the subject of the European Arrest Warrant and who obtains the benefit of a court recommendation for payment pursuant to the Attorney General’s Scheme is consequently not dependent upon the goodwill or cooperation of the Attorney General for the payment of fees as suggested ….’ [Emphasis added]

It is noteworthy that this statement was repeated both in the written and oral submissions made to this Court. It was not challenged.

In my view, this sworn statement, together with the assurances repeated to this Court, when taken with the provisions of the Scheme itself, amply satisfy any requirement implicit in section 13(4). Since in EAW cases, there is no residual discretion on the part of the Attorney General, the provision of legal services in such cases cannot properly be described as merely a matter of benevolence or discretion. On the contrary, where such services are provided pursuant to the Scheme as so expressed, then such services are in my view properly described as being provided as of right. Accordingly, I would reject this aspect of the appeal.”

Mr McGillicuddy’s subsidiary point, if the Court understands it correctly, may be summarised as follows. It was recognised in Olsson that a person facing surrender on foot of a European Arrest Warrant might arguably be entitled to the provision of legal assistance as of right. However, the Supreme Court in Olsson did not express a definitive view on that matter. Rather, the appeal was allowed to proceed on an assumption (this Court’s emphasis) that such a right exists, and in his judgment in Olsson O’Donnell J expressly recognises that s.13(4) of the Act of 2003 reflects a similar assumption. However, even if it be the case that there is an entitlement to the provision of legal assistance as of right in European Arrest Warrant cases, O’Donnell J’s judgment in Olsson makes it clear that that right is certainly not created by, nor does it derive from, Article 11.2 of the Framework Decision. The Supreme Court did not consider it necessary for the purpose of deciding Olsson to identify the precise derivation of such a right if indeed it does exist. (Without deciding the matter, this Court readily recognises that such a right might potentially derive from several sources, not least of which would include the Irish Constitution itself, and domestic Irish constitutional jurisprudence.) Be all of that as it may, nothing has been suggested by the respondent, apart from Article 11.2 of the Framework Decision (from which it is clear the right, if it does exist, does not derive), to suggest that the enactment of a statutory legal aid scheme for European Arrest Warrant cases is the only appropriate means by which the Irish state could vindicate such a right. Counsel submits that the State is under no such constraint and that the provision of legal assistance as of right through a non-statutory mechanism such as the Attorney General’s scheme is a perfectly legitimate means of doing so, and that it constitutes an effective discharge of any obligation that this State might have in that regard.

Counsel for the applicant has also sought to address the respondent’s reliance upon Article 47 of the Charter. The manner in which it is relied upon is set out in paragraph 2 of the Points of Objection filed by the respondent as follows:

“Article 11(2) of the Framework Decision in conjunction with the ‘conforming interpretation’ obligation (Pupino case) and Art 47 of the EU Charter on Fundamental Rights require legal aid provision ‘in accordance with national law’.”

In counsel for the applicant’s submission the right to legal aid under the Charter is only incorporated to the extent that it is guaranteed under the Convention. Article 6 of the Convention in its terms provides that a person in criminal proceedings would have a right “to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require”. The Court would observe that, although nothing turns on it, the explanations document suggests that the provision quoted, namely Article 6(3)(c) of the Convention, is not in fact incorporated for the purposes of the Charter by Article 47 thereof, but rather by Article 48 thereof . Be that as it may, Mr McGillicuddy maintains that the European Court of Human Rights has stated unequivocally that Article 6 of the Convention has no application at all to extradition proceedings.

In support of this contention he refers the Court to the judgment of the Grand Chamber of the European Court of Human Rights dated 4th February 2005 in the case of Mamatkulov and Askarov v Turkey (applications nos 46827/99 and 46951/99), and in particular to paragraphs 81 to 83 inclusive of that judgment, where it is stated:

“81. The applicants alleged that they had not had a fair hearing in the criminal court that had ruled on the request for their extradition, in that they had been unable to gain access to all the material in the case file or to put forward their arguments concerning the characterisation of the offences they were alleged to have committed.

82. The Court reiterates that decisions regarding the entry, stay and deportation of aliens do not concern the determination of an applicant's civil rights or obligations or of a criminal charge against him, within the meaning of Article 6 § 1 of the Convention (see Maaouia v. France [GC], no. 39652/98, § 40, ECHR 2000-X; Penafiel Salgado v. Spain (dec.), no. 65964/01, 16 April 2002; and Sardinas Albo v. Italy (dec.), no. 56271/00, ECHR 2004-I).

83. Consequently, Article 6 § 1 of the Convention is not applicable in the instant case.”

Decision
The problem with respondent’s primary argument, as properly identified by Mr McGillicuddy, is that it relies on the Framework Decision as though it were directly effective. However, it is not directly effective. In Minister for Justice, Equality and Law Reform v. Altaravicius [2006] 3 IR 148 the Supreme Court held to the contrary, Murray C.J stating (at para 27 of his judgment):

“Although the framework decision cannot, in terms of community law, have direct effect (since Article 34.2(b) of the Treaty on European Union expressly excludes such effect) the Oireachtas has chosen to give it, at least as regards a significant number of its provisions, such effect and make it directly applicable within the State. This is achieved, inter alia, by s.10 of the Act of 2003 which provides that where a European arrest warrant has been duly issued in respect of a person ‘that person shall, subject to and in accordance with the provisions of this Act and the Framework Decision, be arrested and surrendered to the issuing state’. The Act of 2003 does not confine itself to including the framework decision in a schedule for reference purposes. There are other provisions of the Act of 2003 which require the courts to interpret and apply the framework decision directly but it is sufficient for present purposes to note that s.10 means that in deciding on an application for a surrender pursuant to the terms of the Act of 2003 the court must apply both the provisions of the Act and the framework decision. It is, to say the least, an idiosyncratic method of legislating and likely to create ambiguity.”

Murray C.J. goes to note that:

“A reference of a question concerning the interpretation or application of the framework decision to the Court of Justice for a preliminary ruling pursuant to Article 35.1 of the Treaty on European Union cannot be made since Ireland has not made a declaration accepting the jurisdiction of the Court of Justice to give such a preliminary ruling which Article 35.2 makes a precondition to any such jurisdiction. It is a matter for this court to determine, in final instance, the interpretation of the framework decision.”

This Court is clearly bound by the Supreme Court’s view on how the Framework Decision, or any particular provision of it, is to be interpreted for the purposes of Irish law. Moreover, the Supreme Court has the final word on any such question in circumstances where it is not possible for an Irish Court to seek a preliminary ruling from the Court of Justice in Luxembourg. In Minister for Justice, Equality and Law Reform v. Olsson the Supreme Court considered, inter alia, the proper interpretation of Article 11.2 of the Framework Decision. It stated in the clearest terms in Olsson that Article 11.2 of the Framework Decision “imposes no obligation on the requested state to provide legal aid, whether as of right, or otherwise”.

Contrary to what has been submitted by the respondent, this Court does not believe that this observation was made obiter dictum in circumstances where O’Donnell J was of the belief, and stated expressly, that “[t]he appellant’s case in this appeal depends on an interpretation of the Framework Decision and Act of 2003, as amended”, and following which he proceeded to then interpret just one provision in each of those instruments respectively, namely Article 11.2 in the case of the Framework Decision, and s. 13(4) in the case of the Act of 2003. In such circumstances, and in this Court’s view, the interpretations given have to be regarded as part of the ratio decidendi of the Olsson case.

For the respondent to have succeeded on foot of his primary argument he needed to be in a position to demonstrate the existence of an obligation on the State to implement a statutory scheme for legal aid for persons facing surrender on foot of a European Arrest Warrant. He was unable to do that and therefore could not hope to succeed.

The combined effect of the Olsson and Altaravicius decisions is to make it clear that such an obligation cannot be said to derive from the Framework Decision, and in particular Article 11.2 thereof. It is equally clear on the basis of the arguments advanced by counsel for the applicant, and which this Court accepts as being correct, that no such obligation is imposed upon the State by the Charter (and in particular Article 47 thereof) either on its own or when read with the Framework decision, or by the Convention. Thus, the argument put forward by the respondent, viz that the provision of legal assistance to the respondent by means of the A.G.’s scheme does not represent compliance with, or an effective transposition of, an obligation said to exist in Article 11.2 of the Framework Decision and/or under Article 47 of the Charter, is entirely misconceived and must be treated as unmeritorious.

In the circumstances the Court must dismiss the objection raised by the respondent to his surrender. Accordingly, this Court, being otherwise satisfied that it is appropriate to surrender the respondent to the issuing State under s.16 of the Act of 2003, will make an order under s.16 aforesaid surrendering the respondent to such person as is duly authorised by the issuing state to receive him.