Facts of the case:
The applicant of the case orders the surrender to Poland of the Polish respondent pursuant to the European Arrest Warrant Act 2003, on foot of two European arrest warrants issued in 2006. The applicant acknowledges that the respondent was tried in absentia for the offence which is subject of the second arrest warrant; while controversies arise in relation to the first warrant. In this case, since the respondent was unrepresented by a lawyer, he argues that with a surrender of the respondent would be incompatible with Ireland's obligations to the respondent under either the Convention or the Constitution.
Outcome of the case:
The High Court refused to order the surrender of the respondent to Poland. The decision of the court is based on the fact that the applicant provided no cogent evidence to prove that the right to have legal representation at the trial had been granted to the respondent.
For completeness the Court will also set out Article 47 of the Charter of Fundamental Rights of the European Union (2000/C 364/01) (hereinafter referred to as "the Charter") as the Charter is specifically referred to in recital 12 to the Framework Decision , and therefore also has a relevance to any complaint based upon denial, or apprehended denial, of fundamental rights. Article 47 of the Charter states:
'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.'
This Court considers that it is entitled to expect in respect of any conviction which is the subject of a European arrest warrant that the issuing judicial authority would not knowingly seek a respondent's rendition in circumstances where he had not received a fair trial (as judged against widely accepted norms such as those expressed in provisions such as Article 6 of the European Convention on Human Rights, to which instrument all member states operating the European arrest warrant are signatories; alternatively Article 47 of the Charter of Fundamental Rights which is also binding on such member states post the coming into force of the Lisbon Treaty), and that it is therefore to be presumed that the respondent did in fact receive a fair trial that respected his fundamental rights. Such a presumption is, of course, capable of being rebutted in any particular case but the Court would require to have adduced before it very cogent and compelling evidence tending to rebut that presumption before it would be put upon enquiry and be justified in seeking to look behind the presumption.
The following conclusions can be drawn from all of the above.
First, although the respondent had a right under both the Convention and the Charter (a) to have legal representation at his trial and (b) to have such representation provided for him at the Polish state's expense if he could not afford it, there is no cogent evidence tending to suggest that he may have been denied those rights or that he was not made aware of them. In absence of any such evidence it must be presumed that such rights were afforded to him and that in that respect there was no unfairness in his trial.
Secondly, the respondent cannot rely upon Article 38 of the Irish Constitution in support of his contention that the failure of any judge in Poland to appraise him of his right to legal representation, and/or of his right to apply for a state appointed lawyer, separate from any such appraisal that was given to him by the police or prosecutor, represented an unfairness in his trial and a denial of due process. Moreover, nothing has been drawn to the Court's attention to suggest that, separate from the position under Irish law, a judge is specifically required to appraise him of his rights for there to be compliance with either Article 6(3)(c) of the Convention, or indeed Article 47 of the Charter of Fundamental Rights. Accordingly, in the absence of cogent evidence that he had a specific right under either of those instruments to be informed by a judge concerning his right to legal representation, and/or of his right to apply for a state appointed lawyer, the presumption that his trial was fair is not rebutted on account of that alleged deficit either.