We Know That We Know Nothing, But it Doesn’t Matter: the European Arrest Warrant after Brexit

© Photo by Gwydion M. Williams via Flickr.com

We Know That We Know Nothing, But it Doesn’t Matter: the European Arrest Warrant after Brexit

Matteo Zamboni

20 May 2019

© Photo by Gwydion M. Williams via Flickr.com

The doubts surrounding Brexit did not spare the system of surrender established with the Council Framework Decision of 13 June 2002 on the European arrest warrant (‘Framework Decision’, ‘EAW’).

Some of these doubts, however, have been resolved by a much commented judgment delivered by the Court of Justice of the European Union (‘ECJ’) on 19 September 2018, in case C-327/18, on a request for preliminary ruling, dealt with under the urgent procedure.

The preliminary ruling was requested by the High Court of Ireland, which had to adjudicate over the surrender of an individual sought by an EAW issued by the United Kingdom.

The Requested Person argued that, given the uncertainty as to the law in force in the United Kingdom after the withdrawal from the European Union, there was a real risk that he would have been exposed to violation of a number of his rights under the Framework Decision and the EU Charter of Fundamental Rights upon surrender; namely,

- the right to a deduction of the period spent in custody in Ireland from the prison sentence to be served in the UK (Article 26 of the Framework Decision);

- the right not to be prosecuted for an offence committed prior to surrender, other than that for which he was sought on the EAW (Article 27 of the Framework Decision, so-called ‘speciality rule’);

- the right not to be further surrendered to a third state (set out, under certain conditions, in Article 28 of the Framework Decision); and

- the right not to be subjected to torture or any other cruel, inhuman or degrading treatment (Article 4 of the EU Charter of Fundamental Rights).

With a far-reaching argument, the Requested Person also maintained that “the principle of mutual trust, which is at the basis of mutual recognition, had been irreparably eroded by [the] notification [by the United Kingdom under Article 50 TUE], and consequently the surrender provided for by the Framework Decision ought not to be executed” (§ 43 of the judgment of 19 September 2018).

Against this background, the High Court of Ireland referred 4 questions to the ECJ concerning the consequences of the UK triggering Article 50 TEU on the enforcement of the EAWs issued by that Country.

In essence, the ECJ was called to establish “whether mere notification by a Member State of its intention to withdraw from the European Union in accordance with Article 50 TEU is such as to justify, under EU law, a refusal to execute a European arrest warrant issued by that Member State” (§ 44 of the judgment of 19 September 2018).

The answer was negative.

In outline, the ECJ recalled that “such a notification does not have the effect of suspending the application of EU law”. Quite the contrary, EU law (including the provisions of the Framework Decision and the principle of mutual trust) will remain “in full force and effect in [the United Kingdom] until the time of its actual withdrawal from the European Union” (§ 45 of the judgment of 19 September 2018).

In details, the ECJ pointed out that, even in the worst-case scenario (i.e. no deal), the rights invoked by the Requested Person under the Framework Decisions are guaranteed by other international law instruments, binding upon the United Kingdom and incorporated in its domestic law.

Namely, the ECJ found that

- the prohibition of torture and other inhuman, cruel or degrading treatment or punishment is guaranteed by Article 3 ECHR and in domestic law (§ 52 of the judgment of 19 September 2018);

- the rule of speciality and the prohibition of re-extradition to a third state are set out in Articles 14 and 15 of the European Convention on Extradition of 13 December 1957 and, likewise, in the 2003 Extradition Act, in force in the UK (§ 55-56 of the judgment of 19 September 2018);

- the right to a deduction of the period of time served in custody with a view to surrender in the requested state from the prison sentence to be served in the requesting state, albeit not set forth in the 1957 ECE, is “incorporated […] into [UK] national law” (§ 58 of the judgment of 19 September 2018).

In sum, the ECJ found that the fact that “the rights resulting from Articles 26 to 28 of the Framework Decision and the fundamental rights laid down in Article 4 of the Charter are protected by provisions of national law” of the United Kingdom, coupled with “[its] continuing participation […] in international conventions, such as the European Convention on Extradition of 13 December 1957 and the European Convention on Human Rights, even after the withdrawal […] from the European Union”, make it possible “to presume that, with respect to the person who is to be surrendered, the issuing Member State will apply the substantive content of the rights derived from the Framework Decision” (§§ 59 and 61of the judgment of 19 September 2018).

True, in the future the enforcement of these rights in the United Kingdom might not be subjected to the scrutiny of the ECJ. However, the Court upheld the Advocate General’s argument that “the Court has not always been available to the courts and tribunals responsible for the application of the European arrest warrant” (§ 60 of the judgment of 19 September 2018). In fact, the jurisdiction of the ECJ to interpret the Framework Decision has only been established in 2014; that is to say, more than ten years after its entry into force. Therefore, as the Advocate General puts it in his carefully crafted legal opinion, delivered on August 7, 2018 (from which the title of the present post is borrowed), “[i]t was only […] five years after [the] entry into force [of the Treaty of Lisbon] that the Court obtained full jurisdiction with regards to the interpretation of the Framework Decision” (AG Opinion of 7 August 2018, § 76).

Having said that, the Advocate General concedes that “Brexit constitutes terra incognita in terms of EU law”, since “[l]ittle is known about the arrangements to be put in place between the EU and the UK after 29 March 2019, neither in general nor regarding the system of the EAW in particular” (AG Opinion of 7 August 2018, § 79).

But his Opinion, as well as the judgment of the ECJ, shed some light on the future system of surrender between the UK and other EU Member States: In the lack of any specific arrangement, the 1957 European Convention on Extradition will constitute the framework international instrument, while respect for the fundamental rights of the requested persons will be ensured by the ECHR and by the scrutiny of the Strasbourg Court.

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