Opinion of the Advocate General — ECLI:EU:C:2024:559
Date: 2024-06-27
Language of the case: English
Subject matter: Judicial cooperation in criminal matters;Area of freedom, security and justice;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling
Origin: Ireland

summary the UK Supreme Court said at para 114:
“The nature of the measures was to change the manner of execution of the determinate 
custodial sentences by restricting the eligibility for release on licence of terrorist 
prisoners. The nature and purpose of the changes brought about by section 30 of the 
2021 Act and article 20A of the 2008 Order was not to lengthen the determinate 
custodial sentences imposed on the respondents. The length of those sentences was not 
increased in any sense.”
60. Lord Stephens noted that in Del Rio Prada the ECtHR had said that the severity of the 
order is not itself decisive, and, as the nature and purpose of the measure is to permit early 
release, it cannot be regarded as inherently severe. He further noted that a change to the 
20
Anonymised version
execution or enforcement of the penalty did not fall under Article 7 rather contracting states 
are free to determine their own criminal policy in respect of such changes, and thus the appeal 
of the Minister was allowed.
The Approach to a Request for Surrender under EAW
61. The operation of the system for surrender under the Act of 2003 has been the subject 
of a number of judgments of the Superior Courts and from these it is possible to discern the 
first principles.
62. The correct approach of the requested court to an argument regarding the correctness 
of the decision of the UK Supreme Court in Morgan is clear from the scheme of the Framework 
Decision, domestic legislation and the Convention itself. If a Convention remedy is available 
to the appellant in the requesting state, the correct forum for arguing any question concerning 
any apprehension of a breach of the Convention is in the requesting state. What requires to be 
established to resist surrender is whether the appellant’s rights under the Convention will be 
respected were he to be surrendered.
63. This approach was the subject of discussion in two of the early cases of this Court, both 
delivered in 2007: Minister for Justice, Equality and Law Reform v. Brennan [2007] IESC 21, 
[2007] 3 I.R. 732 ^Brennan"}, and Minister for Justice, Equality and Law Reform v. Stapleton 
[2007] IESC 30, [2008] 1 I.R. 669 CStapleton^.
64. In Brennan, it was held that the surrender of a person to a foreign country is not 
precluded merely because the legal system of the requesting state affords a different system of 
criminal justice. There the respondent had absconded from the United Kingdom while he was 
serving a number of sentences, and the EAW sought his return to serve the balance of the 
sentences, but also to prosecute him for the offence of escaping from lawful custody, the latter 
21
Anonymised version
offence carrying a mandatory sentence which, it was argued, was capable of resulting in a 
sentence which was not proportionate in his individual circumstances.
65. Murray C.J. delivering the judgment, with which the other members of this Court 
agreed, noted, the “manner, procedure and mechanism” by which fundamental rights are 
protected in different countries will vary according to national laws and tradition, and that there 
had to be “egregious circumstances” if a refusal of an application for surrender is necessary to 
protect the individual personal rights of the requested person.
66. That theme was continued in Stapleton which considered the impact of a lapse of time 
on fair trial rights in the requesting state, also the United Kingdom. Surrender there was sought 
for the purpose of prosecuting fraud offences alleged to have occurred some 30 years 
previously, and the argument was that much of the evidence upon which the requested person 
might have relied in his defence was no longer available. The High Court declined to order 
surrender ([2006] IEHC 43, [2006] 3 I.R. 26) and Peart J. did so on the basis that the High 
Court was “in just as good a position to be satisfied as to whether the respondent would receive 
a trial on these offences within a reasonable time as a Court in the requesting State”. His view 
essentially was that the ability to invoke Convention rights should not be postponed to the 
requesting state, and that a conclusion could be drawn from the evidence before the requested 
state. Peart J. observed that he did not believe “that it would be appropriate to expose him to 
the hazard that his rights might not be vindicated there [in England]” in the same manner in 
which they would in this jurisdiction. That decision was reversed on appeal, on the ground that 
the High Court had been mistaken to make an assessment in Ireland as to whether the 
prosecution should proceed in England on account of delay.
67. Stapleton establishes that an Irish court to which a request for surrender is made is 
obliged to interpret the objections to surrender for which provisions is made in s. 37 “so far as
22 
Anonymised version
possible, in the light of and so as not to be in conflict with provisions of the Framework 
Decision”. Critically, Fennelly J. noted:
“The corner stone of the entire system is, of course, the principle of mutual recognition 
of the judicial decisions and mutual trust of the legal systems of the other Member 
States.” (p. 684)
68. That dictum reflects Recital 6 of the Framework Decision which characterises “the 
principle of mutual recognition” as “the cornerstone of judicial cooperation”. See further the 
case of Criminal proceedings against Pupino (Case C-105/03) [2006] Q.B. 83; [2005] E.C.R. 
1-5285.
69. Fennelly J. noted that the principle of mutual confidence found in Recital 10 is broader 
than the principle of mutual recognition. Member States must “proceed on the assumption that 
the Courts of the issuing Member State, as is required by Article 6.1 of the Treaty on European 
Union, ‘respect human rights and fundamental freedoms’”. This is consistent with the 
obligation under Article 6.2 of the TEU, referenced in Article 1.3 of the Framework Decision, 
that each state should respect fundamental rights as guaranteed by the Convention “and as they 
result from the constitutional traditions common to the Member States as general principles of 
Community law”.
70. Stapleton is of particular importance in the present case because there this Court 
concluded that the respondent would, following surrender to the UK, have available to him a 
procedure to seek the remedy of prohibition, and to argue that the delay was such as to make it 
unfair to require him to stand trial.
71. From these two judgments it is clear that, in order to refuse surrender on the grounds of 
an apprehended denial of fundamental human rights, a person must show that there are 
23
Anonymised version
“egregious circumstances such as a clearly established and fundamental defect in the system 
of justice of a requesting State where a refusal of an application for surrender may be necessary 
to protect such rights” per Murray C.J. in Brennan at p. 744, cited by Fennelly J. at p. 691 of 
Stapleton.
72. This is supported by legislation. Section 4A of the Act of 2003 creates a presumption 
that the issuing state will comply with the Framework Decision, and ipso facto with the 
Convention:
“4A. It shall be presumed that an issuing state will comply with the requirements of the 
relevant agreement, unless the contrary is shown.”
73. This evidential presumption noted by this Court, per MacMenamin J. in Minister for 
Justice and Equality v. Vestartas [2020] IESC 12 ^Vastartas ") “speaks specifically to the task 
facing” the court of the requested state.
74. Accordingly, an argument by an individual that his or her rights might be infringed by 
surrender because of the approach to the adjudication of rights is never sufficient, unless it can 
be shown that the system of justice in the requesting state is such that that person has no 
procedural means of arguing for a defence of those fundamental rights, or that the substantive 
laws of the requesting state do not recognise, enforce or uphold those rights.
75. This has led to the general statement of principle in the authorities, most recently in the 
judgment of this Court in Minister for Justice v. Campbell [2022] IESC 21, [2022] I.L.R.M.
28, that to refuse surrender on foot of a valid EAW must be seen as wholly exceptional.
76. Surrender was refused in Minister for Justice and Equality v. J. A. T. (No. 2) [2016] IESC 
17, also involving a request from the United Kingdom, where this Court concluded by a
24 
Anonymised version
majority that there did exist an evidential basis for the finding of a potential abuse of process, 
where what was proposed was the prosecution of the requested person for financial crimes 
allegedly committed in that jurisdiction. The factors regarded as central in that case were the 
unexplained lapse of time and the personal vulnerabilities and family circumstances of the 
requested person. O’Donnell J. (as he was then) who gave the lead judgment regarded the 
circumstances on a cumulative basis as “rare, and indeed exceptional” noting that the case 
concerned a repeat application for surrender following a considerable lapse of time and 
avoidable delay by the authorities in both jurisdictions, that there was a potentially significant 
impact on the son of the requested person, and the knowledge on the part of the requesting and 
executing state of these factors. Together, these were sufficient to justify a refusal.
77. The high bar of exceptionality is apparent from Vestartas, where the requested person 
had committed a large number of offences in Lithuania when he was aged between 14 and 15 
years old. He had served part of his custodial sentence and was released on parole but his 
released was revoked two years later, around the time when he came to Ireland. The EAW was 
not issued for another seven years, although the evidence was that the Lithuanian authorities 
became aware of his whereabouts five years before the EAW was transmitted to this 
jurisdiction. The requested person had by then long achieved his majority and was part of a 
family unit in Ireland with two young daughters both of whom had been born in Ireland. This 
Court allowed the appeal of the Minister from the decision of the High Court, and ordered 
surrender of the requested person to Lithuania.
78. In Balmer, the issue raised by the respondent was inter alia that his return would 
contravene, and be incompatible with, the State’s obligation under the Convention as the 
procedures operating in the United Kingdom did not provide for any hearing before a licence 
was revoked and a person recalled to custody. This Court distinguished its decision in Minister 
25
Anonymised version
for Justice v. Nolan aka Kelly [2013] IESC 54 because there the concession had been made by 
the requesting State, the United Kingdom, that the operation of a system for indeterminate 
detention for the protection of the public was incompatible with the Convention, as had been 
held by the European Court of Human Rights in James, Wells and Lee v. United Kingdom 
(App. nos. 25119/09, 5715/09 and 57877/09), [2013] 56 E.H.R.R. 12. It goes without saying 
that such a concession was not made in the present case.
79. Allied to this is the public interest inherent in the Framework Decision that contracting 
states be at liberty to, and facilitated in, the prosecution of crimes and punishment of convicted 
persons, a point made by MacMenamin J. at para. 96 of his judgment in Vastartas'.
“Were it to be the situation that, on surrender, the respondent would be entirely shut out 
from raising [his Convention rights and potential breach thereof] this might be a 
different case. Arguably such a preclusion would be a denial of fundamental rights.”
80. In Smits, O’Malley J. noted that one of the underlying principles of the Framework 
Decision was to “ensure the free circulation of court decisions in criminal matters” and 
observed that the courts of this State are to act on a presumption that the judicial process in the 
United Kingdom will be “attended by the necessary guarantees of fundamental rights and legal 
principle” (para. 64).
Application to the Present Appeal
81. The core question for this Court is whether the requesting state would comply with its 
obligations under the Convention. To an extent the question is answered by this Court’s 
judgment in Brennan and the later Balmer. The Convention applies and is enforceable with full 
effect in the jurisdiction of Northern Ireland and no evidence has been adduced to suggest that 
the courts in that jurisdiction, or the UK Supreme Court to which an appeal lies, will fail to 
26
Anonymised version
respect, enforce and support the appellant’s fundamental rights under the Convention. Added 
to that is the presumption that the national courts of the United Kingdom will apply Convention 
principles and permit the enforcement by MA of those rights in their courts. No general 
systemic failure or anticipation of such failure has been shown.
82. Provided it can be said with a degree of certainty that there exists a system compliant 
with Convention principles, and under which a person is entitled to assert those rights, and 
provided also that the requesting state is amenable to a decision of the Strasbourg Court, then 
as was stated by O'Donnell J. in Balmer, surrender pursuant to an EAW or to a requesting State 
which is a member of the Council of Europe may in practice pose few problems. O’Donnell J. 
observed that what was to be assessed was whether the system included what he called the 
“supranational court” which itself has power to definitively rule on the compliance of a 
particular system within the Convention. As he said:
“It is rare for a national court to have to consider for the first time, and without 
assistance, and to pass judgment on, the compatibility with the Convention of the legal 
or administrative system of another contracting state. Indeed, in those rare and, perhaps, 
egregious cases where the issue raised could justify a refusal to surrender, the residual 
jurisdiction of a court to refuse to surrender a person because of an anticipated breach 
of rights guaranteed under the Convention may be a salutary element in the enforcement 
of rights which the requesting State is obliged to uphold.” (p. 577)
83. As the Court noted (at pp. 590-591), the making of an extradition treaty and the 
implementation of a Framework Decision has to be viewed through the lens of Article 29 of 
the Constitution, requiring friendly cooperation, and Articles 1 and 5 which require respect for 
the sovereignty of other countries. Thus, the principles of friendly cooperation and mutual trust 
and confidence are not unique to the EAW regime, but are key attributes of sovereignty, and 
27
Anonymised version
can be said to arise by reason of the sovereignty of the Irish State and the constitutional 
requirement to respect the judicial sovereignty of other foreign friendly states.
Alleged Systemic Failure
84. However, the Appellant argues that the decision of the UK Supreme Court in Morgan 
amounts to a systemic failure or can be interpreted as evidence that courts of the United 
Kingdom have taken an erroneous approach to the interpretation of the Convention, and will 
take that approach should he be returned. The question then is whether this Court is required 
to, or is competent to, form its own views as to the correctness of the argument made by
MA , that the new sentencing regime operating under statute in the United Kingdom which 
will apply to him, should he be convicted following a surrender, is compliant with the Article 
7 of the Convention as interpreted by the Court in Strasbourg.
85. The starting point under the Framework Decision is the obligation and responsibility of 
the requested State to surrender, subject only to the provisions of s. 37 the Act of 2003. Section 
37 in effect makes Convention compliance a key factor, not how domestic law might interpret 
the Convention or might, by reason of its interpretation of the Convention, assess the likelihood 
of non-compliance. McKechnie J. in Minister for Justice and Equality v. Ostrowski [2013] 
IESC 24, [2013] 4 I.R. 206 observed that it is not possible for an Irish court in the light of the 
correct interpretative approach to the Framework Decision to apply a proportionality test on 
the merits of the application. In that regard it seems to me that the argument of the appellant in 
reliance on Morgan is misplaced. Indeed, the fact that the UK Supreme Court in Morgan 
considered the meaning and import of rights under Article 7 of the Convention shows, in 
circumstances so akin to the present appeal as to be compelling, that that the appellant may 
raise, and have determined, questions concerning Convention rights within the jurisdiction of 
the United Kingdom and Northern Ireland.
28
Anonymised version
86. I would reject the argument of this Court should rule on the correctness of the decision 
of the UK Supreme Court in Morgan. The Court in Strasbourg is the judicial body responsible 
for interpreting the Convention and whether the actions of a particular Contracting State are 
Convention compliant. To engage now in a critique of the decision in Morgan is not 
permissible under the domestic statutory scheme, or the principles underpinning the 
Framework Decision, those of mutual confidence, respect and recognition, would fail to respect 
the essence of the sovereignty of the United Kingdom, and would usurp the jurisdiction of the 
Strasbourg Court. This Court is not competent for those reasons to predict how the Strasbourg 
Court will interpret the change in regime in Northern Ireland, or whether, if any of the Morgan 
appellants were to make application to the Strasbourg Court, the decision of the UK Supreme 
Court would be upheld.
87. In practical terms it would seem clear that if the appellant is to be surrendered to 
Northern Ireland, any argument he might seek to make in that jurisdiction regarding his 
Convention rights must take account of the decision of the UK Supreme Court in Morgan 
which is materially similar. Indeed, having regard to the fact that the appellant has not yet been 
convicted of the crime in respect of which his surrender is sought, his argument under the 
Convention is less weighty than that made by the Morgan plaintiffs in the Northern Irish case, 
who had already been convicted and sentenced when the legislative change was implemented, 
but whose argument was rejected by the UK Supreme Court.
88. It is clear that in Northern Ireland the judge is involved in setting the element of the 
sentence which must be served before release on licence. As a result the actual warrants in the 
Morgan cases were required to be altered by an administrative decision, and it was this element 
of the new process that was regarded by the Court of Appeal of Northern Ireland as amounting
29
Anonymised version
to a “subversion” of the sentence with a consequence that a breach of the Convention was 
established.
89. The UK Supreme Court disagreed because it said that it did not follow that the 
function being eroded went to the fixing of the penalty. The argument in the present appeal is 
weaker than that in Morgan because the appellant has not been convicted or sentenced. There 
will be no retrospective interference with a judicial decision through the application of the 
amended early release regime applicable to him as there appeared to be in Morgan.
90. It is highly likely as a result that any challenge under the Convention in Northern 
Ireland, or on appeal to the UK Supreme Court that might be brought by the appellant after 
surrender, would fail. It has not been seriously doubted in the course of argument, that should 
the appellant be returned to Northern Ireland he does have available a remedy of making an 
individual application to the ECtHR regarding the proper interpretation of the Convention and 
whether the sentence and licence regime now operative in Northern Ireland could amount to a 
retrospective sentence. It might be that the ECtHR in those circumstances would not require 
him to exhaust domestic remedies as the outcome of his claim in the domestic courts is 
reasonably certain.
Conclusion on Convention Argument
91. In the light of the imperative from the Act of 2003 and the Framework Decision as 
interpreted by the judgments of this Court, the appellant’s argument that surrender to Northern 
Ireland would be in breach of his Convention rights is not supported either by the facts or 
arguments advanced on his behalf. Not only has no systemic flaw been identified which would 
suggest a likely and egregious breach of Convention rights were surrender to be ordered, but 
the opposite is the case, and recent case law from the Courts of Northern Ireland and in the 
appellate jurisdiction of the UK Supreme Court presents a legal system in which the 
30
Anonymised version
Convention is robustly and unequivocally adopted and applied. It is not for this Court to 
consider whether the UK Supreme Court was correct in its decision in Morgan, and the 
approach this Court must take to the surrender request does not permit a refusal to return based 
on an analysis that the UK Supreme Court judgment in Morgan was wrongly decided. This 
Court has on nurnerous occasions recognised the strength of the rule of law and of Convention 
principles in the UK Courts, and nothing in the circumstances of the present case is capable of 
suggesting that the appellant's rights to invoke the Convention will not be fully respected and 
analysed. Of more significance is the fact that the appellant has available to him the remedy of 
bringing an application to the Court in Strasbourg where a definitive and authoritative analysis 
and consideration of the legislative changes will be made. This Court would arguably itself be 
in breach of the Convention, and most certainly be in breach of the Framework Decision, were 
it to embark upon a consideration of the correctness of the judgment of the UK Supreme Court 
in Morgan, and how that judgment might impact upon any argument that might be made by 
MA should he be surrendered to face trial. 
92. It follows therefore that I would reject the argument that surrender should be refused 
under s. 3 7 on account of a perceived breach of Convention rights and the appeal must fail on 
that ground. 
F oreseeabilitv 
93. The second limb of the Article 7 argument advanced by the appellant concerns the 
foreseeability of the change effected by the new laws. 
94. As noted above, the ECtHR in Kajkaris found a breach of Article 7 where the newly 
adopted law of Cyprus lacked sufficient precision to enable the applicant to discern or 
anticipate, even with appropriate advice, the scope of the penalty and the manner of its 
execution. In Coëme and Ors. v. Belgium (App. Nos. 32492/96, 32547/96, 32548/96, 33209/96 
31 
Anonymised version
and 33210/96), the ECtHR held that Article 7 extended to the protection of the legitimate 
expectations of a person who is "detrimentally affected", in particular by the frustration oftheir 
expectations. That case involved a change to the limitation period within which an offence 
could be prosecuted, and the Court held that the change did not come within Article 7 as it did 
not amount to an alteration to the penalty imposed. 
95. The UK Supreme Court in Morgan held that the change was foreseeable for two
reasons: changes had occurred previously in other contexts; and there was a strong public 
policy reason for the change. The appellant argues that this is incorrect and accepts that, while 
with the benefit of legal advice it might be possible to discern a developing trend with regard 
to the judicia! approach to sentencing measures, that such could not apply to changing politica! 
views which may or may not lead to a change in legislative measures. 
96. The argument here advanced fails for the same reason as that regarding retrospectivity
and it is not necessary to repeat it. Further no absolute right to remission exists in Irish law, 
and remission is granted subject to a very wide executive discretion: 0 'Shea v. Minister for 
Justice and Equality [2015] IEHC 636,per McDermott J. Release on licence is no more than 
a privilege, one exercisable by the executive, and is not part of the judicia! function: DPP v. 
Finn [2000] IESC 75, [2001] 2 I.R. 25. 
Implication of Charter Rights. 
97. However, a further complexity is apparent in the present case. In considering whether
to accede to the surrender request this Court is clearly engaged in the application and of 
European Union law, to which the Charter applies, and which raises therefore a question of the 
terms of Article 49 of the Charter, which is framed in identical terms to Article 7 of the 
Convention. In perhaps unduly simple terms, the issue is whether in circumstances where the 
requested court arrives at a reasoned conclusion that neither the Constitution nor the 
32 
Anonymised version
Convention requires refusal of surrender, is that reasoning sufficient to adequately deal with 
an argument of compliance with the Charter? Furthermore, is it necessary that the executing 
state conduct an assessment of the compatibility with the Charter of the new Northern Ireland 
sentencing regime for terrorist offences? 
98. Chapter VI of the Charter concerns justice and states in general that everyone whose
rights and freedoms guaranteed by the laws of the Union are violated has a right to an effective 
remedy and a fair trial. Article 49 incorporates the principles of legality: 
"No one shall be held guilty of any criminal offence on account of any act or omission 
which did not constitute a criminal offence under national law or international at the 
time when it was committed. Nor shall a heavier penalty be imposed than that which 
was applicable at the time the criminal offence was committed. If, subsequent to the 
commission of a criminal offence, the law provides for a lighter penalty, that penalty 
shall be applicable." 
99. The requesting state is a contracting party to the Convention, has incorporated the
Convention into its domestic law, the compatibility of the regime has been considered and 
upheld by the courts of that state, and there is a right of individual petition to the ECtHR. If the 
ECtHR were to take a contrary view and conclude that the regime was not compatible with 
Article 7 it is to be assumed the decision would be respected in the requesting state and the 
regime altered accordingly. These considerations can also lead to the conclusion that the 
executing state may refuse to surrender when it is asserted that the regime is incompatible with 
Article 49 of the Charter, albeit that the Charter will not apply to any trial and/or sentence. 
Alternatively, a question arises as to whether the executing court is required to make its own 
assessment of the issue on the basis that the Charter might be interpreted differently. Such an 
33 
Anonymised version
approach would of necessity seem to require a reference under Article 267 in every case in 
which a similar argument was advanced. 
100. No judgment of the Court of Justice has considered the implication of Article 49 of the
Charter on a change in the parole or licence provisions impacting upon the sentence of 
convicted persons, or of those charged for crimes alleged to have been committed before such 
change. This is not surprising as the areas in which the crimina} law of member states involves 
the application of EU law are not, generally speaking, extensive. 
101. The CJEU has, however, considered the implications of Article 47 and 48(2) of the
Charter for the purposes of Article 4a of the Framework Decision. The distinction between the 
imposition of a penalty or sentence and the implementation or execution of a penalty or 
sentence distinction has been endorsed an important element of the CJEU' s jurisprudence on 
Article 4a of the Framework Decision. See for example: C-571/17 PPU -Ar die where the CJEU 
held that for the purposes of Article 4a(l) of Framework Decision the concept of "decision" 
does not cover a decision relating to the execution or application of a custodial sentence 
previously imposed, except where the purpose or effect of that decision is to modify either the 
nature or quantum of that sentence and the authority which adopted it enjoyed some discretion 
in that regard. See also C-270/10 PPU - Tupikas (paras. 78 - 80), and C-271/17 - Zdziaszek 
(paras. 85, 90 and 96). 
102. This was confirmed in the more recent decision ofthat Court in Joined Cases C-514/21
and C-515/21 - LU & PH which concerned the revocation of the suspension of a custodial 
sentence. There, the Court determined that whilst revocation is "likely to affect the situation of 
the person concerned, the fact remains that that person cannot be unaware of the consequences 
that may re sult from an infringement of the conditions to which the benefit of such a suspension 
is subject" (para 83). 
34 
Anonymised version
103. To approach the question of whether a reference under Article 267 of the TFEU is
necessary, one must bear in mind a number of first principles. 
104. Were MA to be surrendered for trial to the jurisdiction of Northern Ireland no issue 
of EU law would be engaged in the trial process, and indeed in a crimina! trial in this 
jurisdiction, usually no issue of EU law is engaged as a crimina! trial is not usually concerned 
with the application or implementation of European law, although of course in specific cases 
it could do so. The Charter is explicit that it does not "establish any new power or task" for the 
EU, in other words that it does not extend its competence to crimina! matters. It follows 
therefore that the Charter, or any rights or assertion ofrights under the Charter, would have no 
part to play in the domestic crimina! process at issue in this appeal. 
105. The question, rather, is if the requested state is obliged, or competent, to itself make an 
assessment as to whether it would be a breach of the Charter obligations of the requested state 
to surrender in circumstances where it is contended that the sentencing provisions which might 
be applied in the requesting state are incompatible with Article 49, albeit that such provisions 
are not themselves subject to the provisions of that Article. 
106. The fust principle and general rule remains that surrender of a requested person under 
the Framework Decision is the general rule and derives from the principles of mutual 
cooperation and confidence outlined above. 
107. In genera!, the EA W regime has been interpreted consistently by the CJEU as requiring 
that any person resisting surrender must establish justifying and substantial grounds for 
believing that he or she would face a real risk of being subjected to a breach of rights. Most of 
the case law where the CJEU has considered Charter rights have been cases where the requested 
persons had argued that he or she would be subjected to inhuman or degrading treatment within 
35 
Anonymised version
the meaning of Article 4 of the Charter has been demonstrated, see for example Joined Cases 
C-354/20 PPU and C-412/20 PPU - L and P. This is because Article 19.2 of the Charter
specifically applies to decisions concerning removal expulsion and extradition and precludes 
removal where there is a serious risk of subjection to the death penalty torture or inhuman or 
degrading treatment, which does not arise here. 
108. In all of these cases the Court of Justice stressed the high threshold of arguability, and
that the requested person must demonstrate a real and substantial risk, more than a hypothetical 
risk and more than mere possibility of exposure to such breach. 
109. The Court of Justice in a judgment given in September 2016 on a request for a
preliminary ruling from the Supreme Court of Latvia (Case C-182/15 - Petruhhin) said that 
when an extradition request is being considered it is not sufficient for a Member State to simply 
ascertain that the requesting state is a party to the Convention rather that reference must be 
made to Article 4 of the Charter (para. 56) and that the requested Member State must "verify 
that the extradition will not prejudice the rights referred to in Article 19 of the Charter" (para. 
60). Petruhin was affirmed by the CJEU in Case C-398/19 - BY - Generalstaatsanwaltschaft 
Berlin. 
110. In a subsequent request for a preliminary hearing under Article 267 TFEU in respect of
the interplay between the EA W regime and the Charter, Case C-128/18 - Dumitru-Tudor 
Dorobantu, the Grand Chamber highlighted the demanding standard and exceptionality of this 
test being satisfied. After making preliminary observations regarding the set of common values 
on which the Union is founded, the Court turned to consider the existence of mutual trust and 
mutual recognition between Member States implied and justified by these common values. lt 
continued to note its significance for the provisions of the Framework Decision, with the 
principle of mutual recognition as the cornerstone of judicia! cooperation such that the 
36 
Anonymised version
execution of an EA W is the norm with any exception being construed strictly. It again stressed 
the exceptional circumstances where mutual recognition and mutual trust may be limited, such 
as where the judicia! authority of the executing Member State has information showing there 
to be a real risk of inhuman or degrading treatment in the issuing Member State, and said that 
the requested judicia! authority must assess the existence of that risk when called upon to 
execute an EA W (para. 51 ). The test must be applied in the light of information that is 
"objective, reliable, specific and properly updated" and which demonstrates a systemic or 
generalised risk of breach of rights. Mere evidence of deficiencies is not always efficient to 
establish the proposition that the requested individual will be subject to inhuman or degrading 
treatment in the event of surrender, see Aranyosi and Ciildiiraru, Case C-404/15 and Case- 
659/15. It must involve a specific and precise determination by the requested Court of a 
substantial and real risk. 
111. In order to ascertain whether it would be a breach of EU law for this Court to surrender 
MA, the Court would have to be satisfied that surrender would be a breach of MA's Charter 
rights. No Charter right of MA is capable of being breached in the crimina! trial itself, and 
therefore what is in question is whether Charter rights are engaged in the surrender decision 
other than as provided for by Article 19 and if so, what the threshold must be for this Court to 
make a conclusion on the argument. 
112. In part the answer is to be found in Articles 53 and 52.3 of the Charter.
113. Article 53 provides as follows:
"Nothing in this Charter shall be interpreted as restricting, or adversely affecting human 
rights and fundamental freedoms as recognised, in their respective fields of application, 
by Union law and international law and by international agreements to which the Union, 
37 
Anonymised version
the Community or all the Member States are party, including the European Convention 
for the Protection of Human Rights and Fundamental Freedoms, and by the Member 
State' s Constitution." 
114. Por the purposes of determining the question now at hand Article 52 identifies the scope
of the rights guaranteed thereby. Article 52.3 provides for coincidence of meaning and scope 
of Charter and Convention Rights: 
"In so far as this Charter contains rights which correspond to rights guaranteed by the 
Convention for the Protection of Human Rights and Fundamental Freedoms, the 
meaning and scope of those rights shall be the same as those laid down by the said 
Convention. This provision shall not prevent Union law providing more extensive 
protection." 
115. Accordingly, two questions arise:
1. Has the requested person shown by evidence or established by argument that
the scope of the rights which might be engaged under the Charter are different
from those recognised, established and subject to the case law of the
Convention?
2. Has the requested person established anything in European Union law that
might suggest that it differs from the protection currently afforded under the
jurisprudence of the ECtHR?
116. The Court of Justice has ruled that Article 49 of the Charter corresponds to or is based
on Article 7 of the Convention. This is clear in C-72/15 Rosneft (paras. 164-165), C-42/17 Mas 
and MB (para. 54 ), and C-634/18 JJ (para. 4 7). This much is noted at para. 52.111, and the 
38 
Anonymised version
sources cited therein, of Peers & ors, The EU Charter of Fundamental Rights: A Commentary 
(2nd ed, Hart Publishing 2021 ). 
117. The Explanation re lating to Article 52(3) of the Charter is clear that the "meaning and
scope" of Charter rights are found in the text of the Convention but also in the case law of the 
ECtHR. Nonetheless EU law is autonomous, and the Court of Justice is the ultimate arbiter of 
the interpretation of Charter rights. This factor, at least at a theoretica! level, means that the 
Court of Justice could come to a different view on the meaning and effect of the Charter fair 
trial rights, and how, and if, the new sentencing regime operating in Northern Ireland is capable 
of being analysed by reference to those rights for the purpose of the surrender decision. While 
it may be noted that there have been some suggestions in Advocate General opinions that 
Article 52.3 permits the CJEU to adopt a different, and arguably more demanding, 
interpretation of Charter provisions than the corresponding provisions of the Convention as 
interpreted, that approach would appear to be inconsistent with the terms and intent of Article 
52.3 and has not been adopted by the CJEU itself. This Court in Minister for Justice v. Celmer 
[2019] IESC 80, [2020] 1 I.L.R.M. 121, rejected an argument made on behalf of the respondent 
and IHREC that more extensive protection is provided to rights under the Charter as against an 
equivalent right under the Convention. O'Donnell J. considered that there would have to be the 
"clearer guidance" from the CJEU to support such an argument (at para. 70). 
118. A factor from Case C-128/18 - Dumitru-Tudor Dorobantu that I wish to highlight is
that the Court of Justice carne to its conclusion in the light of the provisions of the Charter, 
while noting the importance of the Convention in the interpretation of Charter principles (para. 
71 ). That leads me to the conclusion that an assessment of the meaning and effect of Charter 
rights, and of whether the surrender of a person could amount to a failure of compliance with 
Article 49 .1 of the Charter is a matter that requires assessment. Whilst the executing state is 
39 
Anonymised version
itself competent to interpret the Charter, the question anses whether in the present 
circumstances the interpretation and application of the Charter warrants a reference to the Court 
of Justice. 
119. In that instance the question resolves itself to the criteria that the executing judicial
authority ought to apply in assessing compliance with the principle of legality in respect of 
criminal penalties, and whether there is a risk that those rights might be breached, in 
circumstances where the Court is satisfied that surrender is not precluded by either the 
Constitution or the Convention for reasons already addressed. 
Ouestions: 
120. In the light of this Court's obligation in the case where a matter is not acte clair, and
because this Court is the final court in which European law is interpreted domestically, I have 
come to the conclusion that a reference under Article 267 of the TFEU is accordingly necessary. 
In Case C-561/19 Consorzio Jtalian Management, Catania Multiservizi SpA v Rete Ferroviaria 
Italiana SpA, the CJEU emphasised that this is not simply a contentious matter for the parties 
which is to be raised and ruled on in an adversarial manner. Rather to make a reference is an 
obligation in European law which a court of final appeal should always bear in mind as its 
responsibility. As noted by Charleton J. in Merck Sharpe & Dohme v. Clonmel Healthcare 
[2022] IESC 11 this obligation presents irrespective of whether the making of a reference is 
contended for, mentioned, or opposed by the parties before that court in any relevant 
controversy. 
121. The questions in respect of which a reference is to be made concern the impact of the
Charter. The appellant, if he is returned to Northern Ireland, and convicted, is as a matter of 
high probability likely to be sentenced in circumstances where the law relating to imprisonment 
40 
Anonymised version
and release from prison offers him, at least in a subjective sense, a harsher regime than that 
prevailing at the time of the alleged commission of the offence. The new regime makes two 
changes. It increases the length of time that a sentenced person must remain incarcerated before 
he or she can apply for early release, and it imposes an additional administrative or 
discretionary element in the grant of a licence to be released which now must be approved by 
the Parole Commission, a separate condition which did not exist heretofore. 
122. The issues for determination concern whether, where an argument is raised that an
executing state is precluded by virtue of Article 49 of the Charter and Article 7 of the 
Convention, and, where applicable, the provisions of its own national Constitution, from 
surrendering an individual to a requesting state itself a contracting party to the Convention, on 
the grounds that a legislative change, adopted after he is alleged to have committed an offence, 
is said to impose a heavier penalty contrary to Article 49 of the Charter and Article 7 of the 
Convention, and a Court has concluded that surrender is not otherwise a breach of the 
Convention rights of the individual, it is nevertheless obliged to make its own separate 
assessment ( of necessity involving a reference to the CJEU under Article 267 of the TFEU) of 
whether surrender is precluded by Article 49? 
123. Therefore, I propose making a reference to the Court of Justice under Article 267 of the
TFEU as follows: 
Where, pursuant to the Trade and Cooperation agreement of 30.12.2020 (incorporating 
the provisions of the Framework Decision of 13 June 2002 in respect of the surrender 
of persons pursuant to European arrest warrants) surrender is sought for the purposes 
of prosecution on terrorist offences and the individual seeks to resist such surrender on 
the basis that he contends that it would be a breach of Art. 7 of the ECHR and Art. 49(2) 
of the Charter of Fundamental Rights of the European Union on the basis that a 
41 
Anonymised version
legislative measure was introduced altering the portion of a sentence which would be 
required to be served in custody and the arrangements for release on parole and was 
adopted after the date of the alleged offence in respect of which his surrender is sought 
and, where the following considerations apply: 
(i) The requesting state (in this case the UK) is a party to the ECHR and gives
effect to the Convention in its domestic law pursuant the Human Rights Act,
1998;
(ii) The application of the measures in question to prisoners already serving a
sentence imposed by a court, has been held by the courts of the United
Kingdom (including the Supreme Court of the United Kingdom) to be
compatible with the Convention;
(iii) It remains open to any person including the individual if surrendered, to
make a complaint to the European Court of Human Rights,·
(iv) There is no basis for considering that any decision of the European Court of
Human Rights would not be implemented by the requesting state,·
(v) Accordingly, the Court is satisfied that it has not been established that
surrender involves a real risk of a violation of Art. 7 of the Convention or the
Constitution ,·
(vi) It is not suggested that surrender is precluded by Art. 19 of the Charter; 
(vii) Article 49 of the Charter does not apply to the trial or sentencing process;
42 
Anonymised version
(viii) Jt has not been submitted that there is any reason to believe there is any
appreciable difference in the application of Art. 7 of the Convention and Art.
49 of the Charter;
Is a court against whose decision there is no right of appeal for the purposes of Article 
267(3) TFEU, and having regard to Art. 52(3) of the Charter and the obligation of trust 
and confidence between member states and those obliged to operate surrender to the 
EAW provisions pursuant to the Trade and Cooperation Agreement, entitled to 
conclude that the requested person has failed to establish any real risk that his 
surrender would be a breach of Art. 49(2) of the Charter or is such a court obliged to 
conduct some further inquiry, and if sa, what is the nature and scope of that inquiry? 
43 
Anonymised version