Brexit and the EAW: at least now we know what we don’t know
In short: “Mere notification” is not an exceptional circumstance within the meaning of the case law which is capable of justifying a refusal to execute an EAW.
Substantial grounds to believe that the requested person is at risk of being deprived of rights recognised by the Charter and the Framework Decision, following the withdrawal from the EU of the issuing MS, are required for the MS to refuse to execute the EAW while the issuing MS remains a member of the EU.
Two European Arrest Warrants (EAWs) had been issued by the UK in respect of “RO” in January and May 2016 relating to crimes of murder, arson and rape. RO was arrested and detained in custody in February 2016. He has remained in custody since his arrest. In November 2017, the Irish High Court had requested further information from the UK authorities on the conditions of RO’s detention in the event of his being surrendered (in light of the judgment of Aranyosi and Caldararu). Further information was provided in April 2018 and the High Court rejected all objections raised by RO to his surrender except those relating to withdrawal of the UK from the European Union and the objection in relation to the prospect of inhuman and degrading treatment.
RO objected to his surrender on the basis that the UK was withdrawing from the EU and claimed that he could suffer inhuman and degrading treatment if he were to be imprisoned in Northern Ireland.
The Irish Minister for Justice and Equality’s view was that the law should be applied as it stands today and not as it might stand in future. The Irish High Court agreed with the Minister that RO’s surrender is mandatory on the basis of Irish law giving effect to the Framework Decision. RO argued the uncertainty as to the laws in place in the UK after its withdrawal is such that he cannot ensure that the rights he enjoys under EU law will be capable of enforcement and so he ought not be surrendered. He identified four aspects of law over which there would be uncertainty:
One question for the High Court was whether, in the event of a dispute about one of the four aspects above, and in circumstances where the Court did not have jurisdiction to give a preliminary ruling then the surrender of RO would give rise “to a significant risk, rather than a merely theoretical possibility, of injustice, with the consequence that surrender ought not be accepted”
The Irish High Court requested a preliminary ruling from the ECJ on these points (see pp 6-7 for questions referred to the ECJ), noting that it is highly probably that if surrendered RO will remain in prison in the UK after 29 March 2019 when the UK will withdraw from the EU.
The decision concerned the interpretation of Article 50 TEU and of Council Framework Decision 2002/584/JHA of 13 June 2002 which relates to the European Arrest Warrant and surrender procedures between Member States.
In its most simple form, the question for the Court was whether notification by the UK of its intention to leave the EU meant that the executing Member State (Ireland) must refuse to execute the EAW or postpone execution pending clarification as to the law that will apply in the UK upon leaving. Mutual trust between Member States is fundamental to the implementation of EU law and underpins the Framework Decision.
The FD sets out the clear grounds for mandatory non-execution of an EAW and the grounds for optional non-execution. The Court noted that limitations are placed on the principles of mutual recognition and trust in exceptional circumstances. Such exceptions were addressed in Aranyosi and Caldararu.
RO argued that the principle of mutual trust has been irreparably eroded by the UK’s notification under Article 50 and as such the EAW should not be executed.
The Court observed that notification does not suspend the application of EU law in the Member State that has given such notice and so: “EU law, which encompasses the provisions of the FD and the principles of mutual trust and mutual recognition inherent in that decision, continues in full force and effect in that State until the time of its actual withdrawal from the EU”.
Refusal to execute would amount to a unilateral suspension of the Framework Decision which would run counter to the wording of Recital 10: that “the mechanism of the European arrest warrant is based on a high level of confidence between Member States. Its implementation may be suspended only in the event of a serious and persistent breach by one of the MS”.
Importantly the Court noted that the executing JA will still be tasked with carrying out a specific and precise assessment of the particular case to establish whether there are substantial grounds for believing that (after withdrawal from the EU) the surrendered person would be at risk of being deprived of his fundamental rights and the rights derived from the FD. With respect to Article 4 of the Charter (which prohibits inhuman and degrading treatment), the Court, found that it would not be appropriate, as a general rule, to refuse to surrender on that basis where the Court had evidence that there was no real risk that RO would suffer inhuman or degrading treatment within the meaning of Article 4.
Following on from this, the Court also examined whether the Irish High Court might contest this finding on the grounds that RO’s rights would no longer be safeguarded after the UK’s withdrawal. In that respect, the Court noted that the UK is a party to the ECHR and has incorporated the provisions of Article 3 (which corresponds with Article 4 of the Charter) into UK law and as such those rights would be protected and refusal to surrender would not be.
As the rights set out in the Framework Decision and the Charter are protected by provisions of UK national law in cases of surrender and extradition those rights do not depend on the application of the FD. There is no evidence provided that RO will not be able to assert those rights upon surrender to the UK after its withdrawal from the EU. The fact that a preliminary ruling cannot be sought by a requested person following the UK’s withdrawal does not alter the Court’s analysis. Only if there is “concrete evidence” that the substantive content of rights deriving from the FD will not be enforceable in the Member State that is to withdraw, can a judicial authority refuse to execute the EAW.
“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 recognised by the Charter and the Framework Decision following the withdrawal from the EU of the issuing MS, the executing MS cannot refuse to execute the EAW while the issuing MS remains a member of the EU”.
Should you require any further information on the issues raised in this blog please contact our criminal litigation team.
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