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International criminal lawTo surrender or not to surrender – Brexit – UK offers sufficient guarantees for the execution of a European arrest warrant during the Brexit transition period

30 April 2019
News Brexit

CJUE, 19 septembre 2018, RO – C-327/18 PPU, EU:C:2018:733

International criminal law: The mere notification by a Member State of its intention to withdraw from the EU does not have the consequence that, in the event that the Member State issues a European arrest warrant with respect to an individual, the executing Member State must refuse to execute that European arrest warrant. In the absence of substantial grounds to believe that the person who is subject of that European arrest warrant is at risk of being deprived of rights recognized by EU laws, following the withdrawal from the EU of the issuing Member State, the executing Member State cannot refuse to execute that European arrest warrant while the issuing Member State remains a member if the EU.

RO was requested in connection with the execution of two European arrest warrants issued by the UK, pursuant the Framework Decision 2002/584 provisions (hereinafter the « Framework Decision)[1] for crimes carrying potential sentences of life imprisonment. Eventually arrested in Ireland, RO raised objections to his surrender to the UK.

In particular, RO raised the existence of an uncertainty regarding the law which would be applicable after the effective withdrawal of the UK from the EU, set to occur, regarding the applicable sentence, during the period of detention.

The High Court, the Irish referring court, identified the provisions issued by the EU legal framework which would be potentially called into question after the Brexit:

  • the right to a deduction of the period of custody in the executing Member State (Article 26 of the Framework Decision);
  • the specialty rule, conferring on the requested person the right nor to be prosecuted, sentenced or otherwise deprived of his liberty for an offense other than for which he or she was surrendered (Article 27 of the Framework Decision);
  • the right limiting further surrender or extradition to a State other than the executing Member State (Article 28 of the Framework Decision);
  • the respect of the fundamental rights of the person surrendered under the Charter of Fundamental Rights of the European Union, in particular the Article 4 related to the prohibition of inhuman or degrading treatment or punishment.

The Irish High Court sought a preliminary ruling before the European Court seeking in essence to ascertain whether the notification by a Member State of its intention to withdraw from the EU in accordance with Article 50 TEU may entitle the executing Member State, in the event that the withdrawing Member State issues a European arrest warrant, to refuse to execute such warrant or to postpone its execution pending clarification as to the law which would apply in the issuing Member State after its withdrawal from the EU.

In its Judgment dated September 19, 2018, the European Court answers in the negative, ruling first that the notification of its intention to withdraw from the EU by a Member State does not have the effect of suspending the application of EU law within the same Member State. Consequently, EU law, including the provisions of the Framework Decision, continues to be in full force and effect in that State until the time of its actual withdrawal from the EU. The notification of intention to withdraw cannot be regarded as an exceptional circumstance justifying a refusal to execute a European arrest warrant.

Second, the European Court rules that the withdrawal of the UK would bear no consequence on the rights and rules highlighted by the High Court and relating to the conditions and terms of execution of the sentence:

  • regarding the right to a deduction, it is incorporated in UK domestic law and applied irrespective of the EU law, to any person who is extradited into the UK;
  • provisions of Article 27 and 28 of the Framework Decision are reflected in Articles 14 and 15 of the European Convention on Extradition of 13 December 1957, signed by the UK ;
  • Article 4 of the Charter of Fundamental Rights of the European Union is similar to Article 3 of the European Convention on the Human Rights, which will remain applicable in the UK.

Thus, a Member State which has notified its intention to withdraw from the EU remains entitled to request the application of the provisions of the Framework Decision on the European arrest warrant until its effective withdrawal if the review of its domestic law allows to presume that, in relation to the requested person, the former Member State will continue to guarantee, in essence, after its effective withdrawal from the EU, the rights protected under the Framework Decision and in relation to the post-surrender period.

[1] Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (OJ 2002 L 190, p. 1), as amended by Council Framework Decision 2009/299/JHA of 26 February 2009 (OJ 2009 L 81, p. 24).

 

Mathieu Le Rolle

Partner

 

Meltem intervenes in international criminal law (European arrest warrant, extradition proceedings)  Meltem’s Know-How