LAWYERS FOR the parents of murdered French woman Sophie Toscan du Plantier will lodge a formal complaint against Ireland at the European Commission in the coming days over the decision not to extradite Ian Bailey in connection with the film-maker’s death.
The lawyers argue that the Supreme Court interpretation of the Irish legislation governing the European arrest warrant (EAW) is in breach of EU treaties and hope the commission in Brussels will refer the case to the European Court of Justice.
French authorities sought the surrender of Mr Bailey (55), who has always denied any involvement in Ms Toscan du Plantier’s death, for questioning by an investigating French judge but in March the Supreme Court ruled in favour of Mr Bailey who had appealed against his extradition.
Alain Spilliaert, lawyer for Ms Toscan du Plantier’s parents, Georges and Marguerite Bouniol and the campaign group, the Association for the Truth about the Murder of Sophie Toscan du Plantier, said the aim of the complaint was to seek to compel Ireland to amend its legislation.
Mr Spilliaert said the interpretation of part of the European arrest warrant legislation by the Supreme Court meant that Ireland is in breach of the European Agreement to which it signed up to in 2002 when it agreed to enact EAW legislation.
“Our concern is that if the investigating French magistrate, Patrick Gachon proceeds and holds a trial in absentia for Mr Bailey and if he is convicted and the judge again seeks his extradition, the same issue will arise and we want to avoid that,” said Mr Spilliaert.
According to documents drawn up by Mr Spilliaert and French European law expert Michel Puechavy, the complaint centres on one of the two grounds for refusing the extradition, namely the Supreme Court’s interpretation of article 44 of the EAW Act 2003. According to the decision of the Supreme Court, article 44, which deals with the principle of reciprocity, was not met as, under French law, the French authorities claim extraterritorial jurisdiction for any offence committed outside of France once the victim is a French citizen.
Mr Justice Nial Fennelly outlined the Irish position on extraterritorial jurisdiction which only applies when the accused is an Irish citizen and a person who is not an Irish citizen cannot be prosecuted under Irish law for a murder committed outside of Ireland.
However, Mr Spilliaert said this majority interpretation of article 44 by the Supreme Court is in breach of Ireland’s signing up to the European agreement which underpins the arrest warrant legislation and they had cited several judgments to support their position. He said that it was established by the European court that European treaties and secondary legislation should not be subjected to “conditional reciprocity” by the individual member states.
He also noted the European Commission in a judgment against Belgium in 1980 had said community law “must be interpreted and applied uniformly throughout the community and cannot therefore be left entirely to the discretion of the member states”.
“Ireland will be president of the European Union in 2013, so we want to put pressure on it. It’s not normal that a country such as Ireland should sign a European accord and then write a law that is not clear,” said Mr Spilliaert.
He said he expects the case to be considered by the commission in the next four to five months.
A spokesperson for the Department of Justice said the matter had been dealt with conclusively by the Supreme Court and the courts are independent in the exercise of their function. Minister for Justice Alan Shatter was not open to comment on a particular case.
