THE SUPREME COURT has referred an issue of law raised in proceedings brought by convicted Dutch criminal Naoufal Fassih arising out of his 2017 extradition from Ireland to the Netherlands to the Court of Justice of the European Union.

Fassih is currently serving an 18-year prison sentence in his home country after being convicted of charges including attempted murder.

The crime boss was extradited on foot of a European Arrest Warrant (EAW), issued by public prosecutors in Amsterdam, following his arrest by gardaí, in a Kinahan safehouse on Dublin’s Baggot Street in 2016, while on the run from the Netherlands. 

However, he has brought a challenge against a request made by the Dutch authorities for their Irish counterpart’s consent to his further prosecution on charges not contained in the EAWs seeking his surrender.

Such consent is required from the surrendering state’s authorities, under the laws that govern EAWs. 

Following his extradition, the CJEU delivered judgements in cases which held that public prosecutors in the Netherlands cannot be deemed as judicial authorities, within the context of the EU framework agreement governing EAWs.

These 2019 decisions mean that EAWs from the Netherlands must be issued by judicial authorities.

Relying on those decisions lawyers representing Fassih claim that consent to his further prosecution in the Netherlands cannot be given by the Irish Courts, as the EAW’s seeking his surrender were not validly issued having been issued by prosecutors. 

His action, where he claims that the Irish authorities should not give their consent, is opposed by the Minister for Justice.

Both the Irish High Court and the Court of Appeal ruled that Fassih’s lawyer is prevented from making that argument because the Irish courts had previously made an order for his surrender as the legal issue raised has already been decided.

His lawyers sought to have the Supreme Court consider his appeal against those decisions.

Having considered the issues raised a five-judge Supreme Court comprised of Mr Justice John MacMenamin, Mr Justice Peter Charleton, Ms Justice Iseult O’Malley, Ms Justice Marie Baker and Mr Justice Gerard Hogan unanimously agreed that the cases raised questions that should be determined by the Court of Justice of the European Union. 

Giving the court’s decision Ms Justice O’Malley said the issues in the case are complex, both in terms of EU and domestic law.

Both sides, the judge said, had raised “strong arguments”.

The issues the judge said came down to the correct legal analysis of the relationship between the order for surrender and the subsequent application for consent.

Ultimately, she said that the legal relationship between the procedures is a matter to be determined by EU law since the national legislation regarding such requests is aimed at the implementation of the framework decision governing EAWs.

The key concepts involved have been held to be autonomous concepts of EU law, she added. 

The CJEU has been asked to clarify issues concerning an aspect of the framework decision regarding EAWs.

The Supreme Court has asked if a final decision to surrender a person creates a legal relationship where any final decision taken regarding an EAW request is determinative of any further requests for consent for further prosecution or punishment for other offences.

The Supreme also asks if national procedural rules breach the principle that laws must be effective if such rules prevent a person from relying on judgements of CJEU delivered after the order for surrender has been made.

The court also proposed the CJEU be requested to consider giving the matter an expedited hearing.