Back to basics with testamentary capacity
Date:13 July 2022
Rebecca Niblock and Vânia Costa Ramos
Specialist Area:International Crime and Extradition
- Presentation of the Statement by us (15min)
- Initial reactions from institutional stakeholders (20min)
- Comments from the audience (10min)
Across Europe, persons who have been successful in challenging INTERPOL red notices, extradition requests or EAW proceedings face the risk of re-arrest and extradition or surrender, particularly when such persons cross borders. This is the case even where a successful challenge has come about because of the risk of a violation of human rights or political persecution that applies equally throughout Europe. They are thus de facto deprived of their right to freedom of movement and effective protection of their human rights, and lack remedies to avoid being re-arrested in all remaining EU and Council of Europe countries.
Member States of the EU should to give effect to the principles of mutual trust and mutual recognition, the right to liberty, and right to freedom of movement within the EU by agreeing:
That a decision by a judicial authority of a Member State is binding upon the authorities of another Member State and as such prevents arrest and extradition or surrender if the court has found the request for extradition to violate the principle of ne bis in idem or to be disproportionate;
That a decision by a judicial authority of a Member State is binding upon the authorities of another Member State and as such prevents arrest and extradition or surrender if the court has found a risk of a violation of fundamental rights, as long as it has not been established that the requesting state has taken steps to remediate this risk;
To the creation of an independent, harmonised mechanism at the EU level in order to regulate the issuance and subsistence of alerts in the SIS (and the execution and continued effects of an INTERPOL alert within the EU) and to provide effective procedural safeguards on national and European-level with regard to the access and effective remedies against alerts.
We also encourage Members States of the Council of Europe to reflect on our recommendations and consider the possibility of recognizing the binding effect of the above-mentioned decisions by judicial authorities of any Council of Europe Member State as a matter of priority.
On 16 November the CJEU delivered its judgment following the publication of the Advocate General’s opinion on the UK-Ireland extradition questions which we wrote about here. The decision concerned the mechanisms for extradition to the UK from Ireland in two scenarios (1) under the terms of the withdrawal agreement from 1 February to 31 December 2020 and (2) under the EU-UK Trade and Cooperation Agreement (“TCA”) from 1 January 2021.
The judgment confirms the AG’s Opinion that Ireland is bound by the withdrawal agreement and the TCA (“the agreements”) in respect of extradition arrangements with the UK and accordingly extradition from Ireland to the UK post-Brexit will continue under those terms.
On 9 November 2021 Advocate General Kokott handed down her opinion in respect of Case C-479/21 concerning Mr Sn and Mr Sd following a reference from the Irish Supreme Court which was made on 3 August 2021. Her opinion stated that the provisions of the Withdrawal Agreement and TCA which ensure the continuation of the European arrest warrant regime in respect of warrants issued by the United Kingdom (“UK”) during the transition period are binding on Ireland.
Rebecca Niblock and Edward Grange examine the key changes & similarities to extradition law following Brexit. The introduction of new surrender arrangements under the EU-UK Trade and Cooperation Agreement. Changes effected under the Extradition (Provisional Arrest) Act 2020.
In a article originally written for Legal Action Group, Rebecca Niblock and Edward Grange, examine two important changes since the last edition of Extradition law: a practitioner’s guide.
Perhaps the first practical negative consequence for the UK to emerge “Beyond Brexit” from an extradition perspective relates to Article 83 of the TCA which allows EU Member States to refuse to extradite their own nationals to the UK. Germany, Austria and Slovenia had already exercised the Nationality bar during the transition period, which ended on 31 December 2020.
The potential fallout from Brexit for extradition and cross-border criminal justice security had been forewarned even before the first vote was cast in the Referendum. The risks to the UK of losing access to SIS II and complicating a relatively simple (albeit not perfect) EAW process were highlighted by many practitioners, law enforcement agencies and politicians.
This is the final blog in our four-part series looking at some of the key points arising from the published decisions of the Commission for the Control of INTERPOL’s Files (“CCF”). In the first blog, we discussed INTERPOL’s consideration of the merits of the underlying case, in the second claims of political motivation, and in the third the relevance of failed extradition requests. In this blog, we look at requests for deletion of Red Notices in cases arising from unfunded or bounced cheques.
This is the third in our series of blogs looking at some of the key points arising from the published decisions of the Commission for the Control of INTERPOL’s Files (“CCF”). In the first blog, we discussed INTERPOL’s consideration of the merits of the underlying case, and in the second, claims of political motivation. In this blog, we consider the impact of a decision to refuse extradition on the continued publication of a Red Notice.
This is the second in our series of blogs looking at some of the key points arising from the published decisions of the Commission for the Control of INTERPOL’s Files (“CCF”). In the first blog we discussed INTERPOL’s consideration of the merits of the underlying case. In this blog, we look at the approach taken to requests for deletion of Red Notices in politically motivated cases.
A Red Notice (sometimes referred to as a “Red Corner Notice”) is essentially a request by INTERPOL on behalf of one member state to all other member states to locate a suspect or convicted person and take steps to facilitate their surrender to the requesting state, usually through extradition proceedings. It is possible for the subject of a Red Notice to make a request for deletion to INTERPOL.
Deal or no deal, when the UK’s transition agreement expires at 11pm on 31 December 2020 the country will no longer participate in EU sanctions arrangements or otherwise give effect to EU sanctions regimes. Instead, it will operate a two tier system, devising its own sanctions policies and measures which will be supplemented by sanctions measures imposed as a result of United Nations Security Council Resolutions.
The Extradition (Provisional Arrest) Bill received Royal Assent on 22 October 2020. See here for previous blogs charting its passage: Extradition (Provisional) Arrest Bill: a sticking plaster & Extradition (Provisional) Arrest Bill: Second Reading.
On Monday 20 July 2020 the UK suspended it's extradition treaty with its former colony Hong Kong, citing the imposition of controversial new security laws on the territory by China. The new law is seen to have changed the very foundation of the agreement between the two states and the treaty has been suspended "immediately and indefinitely". No consideration will be given to reactivating the treaty unless and until there are clear and robust safeguards preventing the misuse of extradition from the UK.
On 22 June 2020 the Extradition (Provisional Arrest) Bill (the Bill) had its second reading in the House of Commons. The contents of the Bill relate to a gap within the current extradition process and are designed to allow police officers, customs officers or service police officers to arrest suspects without a warrant where they are wanted for serious offences in certain trusted countries (currently designated as Australia, Canada, Liechtenstein, New Zealand, Switzerland and the United States of America).
Over four years of negotiations later and the UK-US Bilateral Data Access Agreement (the Agreement) is expected to come into effect next month. The Agreement will enable law enforcement authorities on both sides of the Atlantic to obtain electronic data directly from communication service providers (CSPs) in the other country for the purposes of criminal investigations and prosecutions for serious crime.
Britain and the EU are unlikely to agree on an alternative to the European arrest warrant. Extradition arrangements between Britain and EU have been low on the list of post-Brexit negotiating priorities.
Yet recent developments in the Madeleine McCann case highlight what the UK stands to lose if no deal is struck on future criminal law enforcement co-operation — and how Brexit has already affected arrangements around the European arrest warrant.
On 14 May 2020 Metropolitan Police officers carried out two search and seizure warrants on behalf of Brazilian prosecutors investigating $5 million in alleged bribes paid to politicians in the state of Amapá in connection with a railroad contract.
In a surprising development, Interpol has reportedly issued a Red Notice for Anne Sacoolas in relation to her alleged involvement in the death of 19 year old Harry Dunn last year.
The Supreme Court’s recent judgment addresses fundamental legal principles and underscores the UK’s longstanding opposition to the death penalty. It does not go as far as it might but it has brought us a great deal closer to protecting the absolute right to life and underscores the serious and extraordinary scrutiny which must be applied in all cases involving the provision of assistance where there is a risk of the imposition of the death penalty.
Over 13,000 INTERPOL Red Notices were issued last year. Even if a person is not arrested pursuant to a Red Notice, the notice itself will cause considerable difficulties, preventing them from travelling and causing significant reputational damage. This blog looks at how you can challenge an Interpol Red Notice and get it deleted.
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