Brexit Means...No Legal Changes Yet: The Cjeu Rules On The Execution Of European Arrest Warrants Issued Past Times The Uk Prior To Brexit Day

Professor Steve Peers, University of Essex

There’s a lot of legal debate virtually the consequences of Brexit, but the definitive tidings on the legal issues, as far as the European Union is concerned, is the EU’s Court of Justice. Its get-go judgment on Brexit issues was released today, defining the legal seat upwards until Brexit Day – in addition to arguably influencing the approach to endure taken after that date.

Today’s judgment inwards RO concerned whether Republic of Ireland was withal obliged to execute a European Arrest Warrant (EAW) issued past times the UK, inwards lite of the UK’s expected withdrawal from the EU, having notified its intention to leave of absence on the reason of Article 50 TEU.  In fact, the draft withdrawal agreement would regulate this number to to a greater extent than or less extent: European Union police clitoris (including the EAW) would withal apply to the UK for a transition menstruum (discussed here) until the terminate of 2020, dependent plain to the caveat that European Union Member U.S. of A. could pass upwards to give upwards their ain citizens pursuant to an EAW issued past times the UK (the UK could reciprocate). At the terminate of the transition period, outstanding EAWs could withal endure executed betwixt the UK in addition to European Union as long as the fugitive was arrested on the reason of the EAW before that date.  However, these specific provisions are non yet agreed, in addition to of course of teaching nor is the entire withdrawal agreement, so inevitably the Court made no cite of this draft treaty inwards its ruling.

The UK issued 2 EAWs for the role of prosecuting RO on grounds of murder, rape in addition to arson charges, but he has challenged the execution of the warrants inwards Ireland. RO is inwards detention pending execution of the EAWs, which is why the Court agreed to fast-track this case. (Note that it refused to fast-track an earlier reference on the same issues, referred past times the Irish Supreme Court. It as good refused to fast-track a similar case on whether the Dublin asylum rules withal apply to the UK inwards lite of Brexit). RO argued that he faced torture or inhuman or degrading handling inwards UK prisons, based on 2016 CJEU illustration police clitoris (discussed here), which was since clarified inwards July. The Irish Gaelic High Court so asked the issuing judicial potency to clarify that detention weather inwards Northern Republic of Ireland would run into minimum standards, in addition to it was satisfied with the reply.

However, the Irish Gaelic High Court was withal concerned virtually the impact of Brexit on RO’s case, in addition to so asked the CJEU if it had whatever impact on executing the EAW. RO argued that in that place was no guarantee that the UK would popular off along to endure jump past times the EAW police clitoris after Brexit Day, inwards item the rules on: deducting custody periods spent inwards the executing state from whatever subsequent sentence; the ‘specialty’ dominion (the fugitive tin exclusively endure prosecuted for the offences specified inwards the EAW); limits on farther give upwards or extradition to an European Union or non-EU State; in addition to the protection of human rights nether the European Union Charter of Fundamental Rights.  Furthermore, the CJEU would probable non endure inwards a seat to dominion on these issues as regards the UK after Brexit Day.

Judgment

The Court began past times noting that mutual trust betwixt Member U.S. of A. was founded on “common values” referred to inwards Article 2 TEU. This regulation means, as regards judge in addition to dwelling affairs, that “save inwards particular circumstances” Member U.S. of A. must presume all other Member U.S. of A. “to endure complying with European Union police clitoris in addition to especially with the primal rights recognised past times European Union law”. For the EAW, this manifested itself inwards a arrangement of mutual recognition, entailing an obligation to execute an EAW issued past times a Member State except “in principle” where the exhaustive grounds for refusal listed inwards the EAW apply. But the “exceptional circumstances” allow an executing State’s courtroom to terminate the EAW process, for illustration where in that place was a risk of torture et al nether Article four of the Charter (which matches Article three ECHR). In this illustration the national courtroom was satisfied that in that place was no risk of losing rights at present; but what virtually the seat of the fugitive after Brexit day?  

On that point, the Court noted that an Article 50 notification “does non direct keep the effect of suspending the application of European Union law” inwards the withdrawing Member State. Therefore European Union law, including the EAW legislation “and the principles of mutual trust in addition to mutual recognition inherent inwards that decision, continues inwards total strength in addition to effect inwards that State until the fourth dimension of its actual withdrawal from the European Union”. The Court summarised the Article 50 procedure without commenting on whether it would endure possible to rescind the notification, as discussed here. That number is relevant to this illustration since a withdrawal of the notification would homecoming the fugitive’s declaration moot, but the number does non look direct keep been raised inwards the case, presumably because it would non direct keep helped the fugitive in addition to is exclusively hypothetical as long as the UK authorities is non contemplating withdrawing the notice.

In the Court’s view, disapplying the EAW to the UK only because an Article 50 notification had been sent would “be the equivalent of unilateral interruption of the provisions of the” EAW law, in addition to would ignore the wording of its preamble, which says that it tin exclusively endure suspended if the European Union decides that an issuing Member State has breached the EU’s values. H5N1 recent CJEU judgment concerning alleged breaches of European Union values inwards Poland (discussed here) concluded that EAWs could exclusively endure suspended on a case-by-case reason if no such finding of breach had been made.  An Article 50 notification was non an “exceptional circumstance” suspending the regulation of mutual trust.

However, RO could fence that in that place were “substantial grounds for believing” that after Brexit, he was “at risk of beingness deprived of his primal rights in addition to the rights derived” from the specific provisions of the EAW police clitoris referred to past times the national courtroom (listed above). On those points, the Irish Gaelic courtroom had already dismissed the declaration that in that place was a risk of torture, et al, owing to UK prison theatre conditions. Brexit would non deportment on that position, inwards the Court’s view:  

In that regard, it must endure observed that, inwards this case, the issuing Member State, namely the United Kingdom, is political party to the ECHR and, as stated past times that Member State at the hearing before the Court, it has incorporated the provisions of Article 3 of the ECHR into its national law. Since its continuing participation inwards that convention is inwards no way linked to its beingness a fellow member of the European Union, the conclusion of that Member State to withdraw from the Union has no effect on its obligation to direct keep due regard to Article 3 of the ECHR, to which Article 4 of the Charter corresponds, and, consequently, cannot justify the refusal to execute a European arrest warrant on the Earth that the mortal surrendered would run the risk of suffering inhuman or degrading handling inside the pregnant of those provisions.

As for the specific provisions of the EAW, in that place were no “ongoing legal proceedings” which mightiness infringe the specialty rule, in addition to no “concrete bear witness to suggest” that whatever such proceedings are beingness “contemplated”. This was as truthful of the potential give upwards or extradition to an European Union or non-EU State. Furthermore, these provisions of the EAW police clitoris “reflect” provisions of the Council of Europe’s extradition Convention, which has been ratified past times the UK in addition to applied inwards its national law. So inwards the Court’s view, “[i]t follows that the rights relied on past times RO inwards those areas are, inwards essence, covered past times the national legislation of the issuing Member State, irrespective of the withdrawal of that Member State from the European Union”. The deduction of previous prison theatre fourth dimension served as good exists inwards UK police clitoris in addition to volition apply regardless of whether the extradition procedure is role of European Union law.

Since the rights based on the legislation in addition to the Charter “are protected past times provisions of [UK] national police clitoris inwards cases non exclusively of give upwards [under the EAW law], but as good of extradition, those rights are non dependent on the application” of the EAW police clitoris as such to the UK, in addition to “there is no concrete bear witness to propose that RO volition endure deprived of the chance to assert those rights before the courts in addition to tribunals of” the UK after Brexit.

Nor was the potential absence of CJEU jurisdiction decisive, because the fugitive “should endure able to rely on all those rights before a courtroom or tribunal of” the UK, in addition to the Court’s jurisdiction did non e'er apply to the EAW police clitoris anyway. Indeed patch the police clitoris applied from 2004, the Court’s jurisdiction did non apply fully until 2014.

Overall then:

…in social club to make upwards one's heed whether a European arrest warrant should endure executed, it is essential that, when that conclusion is to endure taken, the executing judicial potency is able to presume that, with abide by to the mortal who is to endure surrendered, the issuing Member State volition apply the noun content of the rights derived from the Framework Decision that are applicable inwards the menstruum subsequent to the surrender, after the withdrawal of that Member State from the European Union. Such a presumption tin endure made if the national police clitoris of the issuing Member State incorporates the noun content of those rights, especially because of the continuing participation of that Member State inwards international conventions, such as the European Convention on Extradition of 13 December 1957 in addition to the ECHR, fifty-fifty after the withdrawal of that Member State from the European Union. Only if in that place is concrete bear witness to the opposite tin the judicial authorities of a Member State pass upwards to execute the European arrest warrant.

Comments

What has the Court’s judgment told us virtually the Brexit process? First of all, it confirms that inwards the sew together to Brexit naught much volition change, fifty-fifty though to a greater extent than or less legal relationships in addition to processes begun before Brexit Day volition conclude after it. The full general declaration that European Union police clitoris continues to apply to the UK until Brexit Day is qualified, but those qualifications direct keep picayune impact, as long as the UK continues to apply the ECHR, the Human Rights Act, European Union legislation in addition to whatever other relevant international treaties until that date. While the Court refers implicitly to the UK’s here). Today’s judgment, with its credence that Member U.S. of A. tin rely upon the futurity seat of a non-Member State as long as it complies with the ECHR in addition to European Union legislation, fifty-fifty if no CJEU jurisdiction applies, does not lend back upwards to those who claim that it volition endure impossible for the UK to direct keep a unopen human relationship with the European Union inwards this plain after Brexit. (Note as good that inwards the NS judgment, the CJEU assumed that the regulation of mutual trust tin apply to non-EU States, inwards para 78). In whatever event, the limits on Member U.S. of A. extraditing citizens of to a greater extent than or less other Member State to a non-EU State volition apply (see give-and-take of the illustration police clitoris here).

If there’s no withdrawal agreement, in addition to then in that place may endure conflicting approaches to the validity of EAWs pending on Brexit solar daytime (which the CJEU volition probable endure called upon to settle, along with similar issues relating to other European Union legislation disapplying to the UK). There would as good endure a reversion to the exercise of the Council of Europe extradition treaty, with EAWs either beingness treated as extradition requests or having to endure reissued. The UK would straightaway lose access to the Schengen Information System, which is how many EAWs are transmitted. As a consequence, as evidenced past times the impact of introducing the EAW, fewer people would endure extradited in addition to the procedure would bring longer. All this would 1 alongside a number of legal in addition to practical challenges arising from such a major disorganised disruption.

Barnard & Peers: chapter 25; chapter 27

JHA4: chapter II:3

Photo credit: The Journal.ie

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