A Dutch gang leader who was arrested during a Garda swoop on a suspected Kinahan cartel property in Dublin has lost an appeal against a High Court decision allowing him to be tried for murder in the Netherlands.
Lawyers for the Minister for Justice said the appeal by Naoufal Fassih (40), if successful, would have called into question the surrender of people to the Dutch authorities on European Arrest Warrants (EAWs) issued between 2003 and 2019.
At the three-judge Court of Appeal on Thursday, Mr Justice John Edwards dismissed the appeal saying he was "not persuaded that there is merit in any of the appellant's grounds of appeal".
Fassih, a Dutch citizen of Moroccan origin, was surrendered to the Dutch authorities by the High Court after a European Arrest Warrant was issued in 2016.
He was surrendered to the Netherlands and convicted of attempted murder, assault, possession of false documents and money laundering. He was jailed for 18 years for those offences.
In 2019 a decision by the Court of Justice of the European Union (CJEU), in an unrelated case, found that the Dutch public prosecutor that issued the warrant for Fassih is potentially subject to political influence and therefore cannot be recognised as a “judicial authority” authorised to issue EAWs.
While that did not mean the warrant executed in 2017 could be overturned, the decision came to the fore when, in 2020, the Dutch authorities asked for permission from the Irish High Court to try Fassih on further charges of murder and incitement to murder.
Under the EAW system, member states can only try a person who has been surrendered for the charges laid out in the warrant.
If they wish to try that person for further offences they must ask permission from the surrendering country.
On July 27th last year the High Court agreed to allow the Dutch authorities to prosecute Fassih.
Remy Farrell SC, for Fassih, argued at a previous hearing that the European Arrest Warrant Act only allows a further prosecution where the person has been surrendered “on foot of a European Arrest Warrant issued by a judicial authority.”
He said it is clear that in this case the EAW was not issued by a judicial authority and therefore the High Court could not grant permission for the further prosecution.
Mr Justice Edwards, in his judgement, said there must be legal certainty and stability following judicial decisions.
He agreed with the High Court judge who had said: “An objection to the application now before the Court on the basis that the 2016 warrants were not issued by issuing judicial authorities within the meaning of the Framework Decision or the Act of 2003, is a collateral attack on the decision ordering surrender.”
Mr Justice Edwards said such collateral attacks cannot be sustained. Mr Justice Edwards further ruled that the High Court judge who surrendered Fassih in 2016 had determined that the Dutch public prosecutor was a competent judicial authority.
He said the judge’s decision raises the issue of “res judicata” where a decision has been made by a competent court and cannot be further challenged.
“The issues as to whether the 2016 EAWs had, in each case, been issued by a competent judicial authority, and as to whether the appellant was liable to be surrendered to the Netherlands on foot of those EAWs, are res judicata in the circumstances... and I uphold the finding of the High Court in that regard.”