OPINION OF ADVOCATE GENERAL
SZPUNAR
delivered on 27 June 2024 (1)
Case C‑202/24 [Alchaster] (i)
Minister for Justice and Equality
v
MA
(Request for a preliminary ruling from the Supreme Court (Ireland))
(Reference for a preliminary ruling – EU-UK Trade and Cooperation Agreement – Surrender of persons – Article 49(1) of the Charter of Fundamental Rights of the European Union – Principle of legality of criminal offences and penalties – Amendment of the parole system)
I. Introduction
1. The present reference for a preliminary ruling from the Supreme Court (Ireland) concerns the interpretation of, first, the Trade and Cooperation Agreement between the European Union and the European Atomic Energy Community, of the one part, and the United Kingdom of Great Britain and Northern Ireland, of the other part (‘the TCA’) (2) and, secondly, Article 49(1) of the Charter of Fundamental Rights of the European Union (‘the Charter’).
2. This request was made in the context of the execution in Ireland of an arrest warrant issued by the judicial authorities of the United Kingdom for MA for the purpose of conducting a criminal prosecution. The referring court seeks to determine the obligations of a judicial authority executing an arrest warrant where the requested person argues that his or her fundamental rights will be breached by the authorities of the issuing State.
3. I shall argue in this Opinion that, while the provisions of the TCA on surrender procedures enshrine a high level of trust between the European Union and the United Kingdom in their respective legal systems, and while, under certain circumstances, the executing judicial authority can refuse to execute an arrest warrant, there is no reason not to execute the arrest warrant in the present case.
II. Legal framework
4. The TCA is an association agreement based on Article 217 TFEU (3) and Article 101 of the Treaty establishing the European Atomic Energy Community. (4) After an initial provisional application from 1 January 2021, (5) it entered into force on 1 May 2021, further to its ratification by the European Union and the United Kingdom. (6) The agreement is composed of seven parts. (7)
5. Article 5 of the TCA, entitled ‘Private rights’, which is contained in Part One, (8) Title II (9) of the TCA, reads as follows:
‘1. Without prejudice to Article SSC.67 of the Protocol on Social Security Coordination and with the exception, with regard to the Union, of Part Three of this Agreement, nothing in this Agreement or any supplementing agreement shall be construed as conferring rights or imposing obligations on persons other than those created between the Parties under public international law, nor as permitting this Agreement or any supplementing agreement to be directly invoked in the domestic legal systems of the Parties.
2. A Party shall not provide for a right of action under its law against the other Party on the ground that the other Party has acted in breach of this Agreement or any supplementing agreement.’
6. Part Three concerns law enforcement and judicial cooperation in criminal matters.
7. Article 524 of the TCA, in Part Three, Title I, (10) is headed ‘Protection of human rights and fundamental freedoms’ and is worded as follows:
‘1. The cooperation provided for in this Part is based on the Parties’ and Member States’ long-standing respect for democracy, the rule of law and the protection of fundamental rights and freedoms of individuals, including as set out in the Universal Declaration of Human Rights and in the European Convention on Human Rights, and on the importance of giving effect to the rights and freedoms in that Convention domestically.
2. Nothing in this Part modifies the obligation to respect fundamental rights and legal principles as reflected, in particular, in the European Convention on Human Rights and, in the case of the Union and its Member States, in the [Charter].’
8. Title VII of Part Three (Articles 596 to 632), headed ‘Surrender’, establishes a surrender regime between the Member States and the United Kingdom. These provisions are complemented by Annex 43, which sets out the information to be contained in an arrest warrant. (11)
9. Article 599(3) of the TCA (12) reads:
‘Subject to Article 600, points (b) to (h) of Article 601(1), and Articles 602, 603 and 604, a State shall not refuse to execute an arrest warrant issued in relation to the following behaviour where such behaviour is punishable by deprivation of liberty or a detention order of a maximum period of at least 12 months:
(a) the behaviour of any person who contributes to the commission by a group of persons acting with a common purpose of one or more offences in the field of terrorism referred to in Articles 1 and 2 of the European Convention on the Suppression of Terrorism, done at Strasbourg on 27 January 1977, or in relation to illicit trafficking in narcotic drugs and psychotropic substances, or murder, grievous bodily injury, kidnapping, illegal restraint, hostage-taking or rape, even where that person does not take part in the actual execution of the offence or offences concerned; such contribution must be intentional and made with the knowledge that the participation will contribute to the achievement of the group’s criminal activities; or
(b) terrorism as defined in Annex 45.’
10. Article 604, point (c), of the TCA (13) provides that ‘if there are substantial grounds for believing that there is a real risk to the protection of the fundamental rights of the requested person, the executing judicial authority may require, as appropriate, additional guarantees as to the treatment of the requested person after the person’s surrender before it decides whether to execute the arrest warrant’.
III. The main proceedings and the question referred
11. Four warrants for the arrest of MA were issued by the District Judge of the Magistrates’ Courts of Northern Ireland (United Kingdom) on 26 November 2021 in respect of four offences involving terrorism, (14) alleged to have been committed between 18 and 20 July 2020.
12. By judgment of 24 October 2022 and orders of 24 October and 7 November 2022, the High Court (Ireland) ordered MA’s surrender to the United Kingdom, while refusing him leave to appeal to the Court of Appeal (Ireland).
13. By decision of 17 January 2023, the Supreme Court granted MA leave to appeal against that judgment and those orders of the High Court.
14. MA submits that his surrender is incompatible with the principle of legality of criminal offences and penalties.
15. In that regard, the referring court notes that the TCA provides that surrender mechanisms apply between the United Kingdom and the Member States. It considers that, pursuant to the applicable Irish legislation and to Council Framework Decision 2002/584/JHA, (15) the United Kingdom must be treated as if it were a Member State.
16. The referring court states that, were MA to be surrendered to the United Kingdom and sentenced to imprisonment, his right to conditional release would be governed by United Kingdom legislation adopted after the alleged commission of the offences in respect of which he is subject to criminal proceedings.
17. Indeed, the regime permitting conditional release in Northern Ireland was amended with effect from 30 April 2021. Prior to this change, a person convicted of certain terrorism-related offences was eligible for automatic parole after serving half of his or her sentence. Under the regime applicable from that date, the conditional release of such a person will have to be approved by a specialised authority and may only take place after the person concerned has served two thirds of his or her sentence.
18. In that regard, the referring court states that the European Court of Human Rights (‘the ECtHR’) has rejected the argument that retroactive changes to remission or early release schemes constitute an infringement of Article 7 of the Convention for the Protection of Human Rights and Fundamental Freedoms (‘the ECHR’). However, the ECtHR considered, in the judgment in Del Río Prada v. Spain, (16) that measures taken during the enforcement of a sentence may affect its scope. It is therefore essential, in the view of the referring court, to determine the precise effects of that judgment in order to rule on the dispute in the main proceedings.
19. The compatibility of the United Kingdom legislation in question with the ECHR has been reviewed by the United Kingdom courts. Thus, in its judgment of 19 April 2023, the Supreme Court (United Kingdom) held that the application of the scheme to offences committed before its entry into force was not incompatible with Article 7 ECHR, in so far as the scheme only amended how the custodial sentences of the persons concerned were served, without increasing the duration of those sentences.
20. In that context, having regard, in particular, to the guarantees offered by the United Kingdom’s judicial system as regards the application of the ECHR, given the absence of any demonstration of a systemic flaw which would suggest a probable and flagrant breach of the rights guaranteed by the ECHR in the event of surrender, and given the possibility open to MA of bringing an application before the ECtHR, the referring court rejected MA’s argument that there was a risk of breach of those rights.
21. Nevertheless, the referring court wonders whether it is possible to reach a similar conclusion as regards a risk of breach of Article 49(1) of the Charter.
22. That court points out in that regard that, in so far as Article 49(1) of the Charter corresponds to Article 7 ECHR, those two provisions must in principle be given the same scope, in accordance with Article 52(3) of the Charter. It might therefore be possible to rely on the reasoning adopted in relation to Article 7 ECHR without further verification. However, the referring court notes that the Court of Justice has not yet ruled on the implications of Article 49 of the Charter as regards an amendment to the provisions on conditional release.
23. Moreover, given that the executing State is obliged to surrender the requested person, the referring court considers it necessary to assess whether that State has jurisdiction to rule on an argument based on the incompatibility of Article 49(1) of the Charter with provisions on penalties which are likely to be applied in the issuing State, when that State is not obliged to comply with the Charter and the Court has laid down high requirements as regards taking into account a risk of breach of fundamental rights in the issuing Member State.
24. The referring court therefore considers that it must ask the Court what criteria the executing judicial authority should apply in order to assess compliance in the executing State with the principle of legality of penalties and whether there is a risk of breach of that principle in circumstances in which surrender is not precluded by either the national constitution or the ECHR.
25. In those circumstances, by order of 7 March 2024, received at the Court on 14 March 2024, the Supreme Court (Ireland) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:
‘Where, pursuant to the [TCA] (incorporating the provisions of [Framework Decision 2002/584]) surrender is sought for the purposes of prosecution on terrorist offences and the individual seeks to resist such surrender on the basis that he [or she] contends that it would be a breach of [Article] 7 [ECHR] and [Article] 49(2) of the [Charter] on the basis that a legislative measure was introduced altering the portion of a sentence which would be required to be served in custody and the arrangements for release on parole and was adopted after the date of the alleged offence in respect of which his [or her] surrender is sought and, where the following considerations apply:
(i) The requesting State (in this case the [United Kingdom]) is a party to the ECHR and gives effect to the [ECHR] in its domestic law pursuant [to] the Human Rights Act, 1998;
(ii) The application of the measures in question to prisoners already serving a sentence imposed by a court … has been held by the courts of the United Kingdom (including the Supreme Court of the United Kingdom) to be compatible with the [ECHR];
(iii) It remains open to any person including the individual if surrendered, to make a complaint to the [ECtHR];
(iv) There is no basis for considering that any decision of the [ECtHR] would not be implemented by the requesting State;
(v) Accordingly, the [Supreme] Court is satisfied that it has not been established that surrender involves a real risk of [an infringement] of [Article] 7 [ECHR] or the Constitution;
(vi) It is not suggested that surrender is precluded by [Article] 19 of the Charter;
(vii) Article 49 of the Charter does not apply to the trial or sentencing process;
(viii) It has not been submitted that there is any reason to believe there is any appreciable difference in the application of [Article] 7 [ECHR] and [Article] 49 of the Charter;
Is a court against whose decision there is no right of appeal for the purposes of [the third paragraph of] Article 267 TFEU, and having regard to [Article] 52(3) of the Charter and the obligation of trust and confidence between [Member States] and those obliged to operate surrender [pursuant] to the [European arrest warrant] provisions [and] pursuant to the [TCA], entitled to conclude that the requested person has failed to establish any real risk that his [or her] surrender would be a breach of [Article] 49(2) of the Charter or is such a court obliged to conduct some further inquiry, and if so, what is the nature and scope of that inquiry?’
IV. Procedure before the Court
26. The Supreme Court, by separate document of 25 March 2024, requested that the present case be determined pursuant to the expedited procedure provided for in Article 105 of the Rules of Procedure of the Court of Justice.
27. Article 105(1) of the Rules of Procedure provides that, at the request of the referring court or tribunal or, exceptionally, of his own motion, the President of the Court may, after hearing the Judge-Rapporteur and the Advocate General, decide that a reference for a preliminary ruling is to be determined pursuant to an expedited procedure where the nature of the case requires that it be dealt with within a short time. (17)
28. On 22 April 2024, the President of the Court decided, after hearing the Judge-Rapporteur and the Advocate General, to grant the referring court’s request that the present request for a preliminary ruling be determined pursuant to an expedited procedure in accordance with Article 105(1) of the Rules of Procedure. The President of the Court based his decision on the fact that the question referred for a preliminary ruling by the referring court has been raised in a case with regard to a person in custody, within the meaning of the fourth paragraph of Article 267 TFEU. Furthermore, the answer to that question is liable, in the light of the nature of the question and the circumstances in which it is raised, to have an effect on the continued detention of the person concerned. (18)
29. The President of the Court set the time limit for the submission of written observations for 7 May 2024. In accordance with Article 105(2) of the Rules of Procedure of the Court, the date of the hearing was set at 4 June 2024.
30. Written observations were submitted by the parties to the main proceedings, by the Hungarian Government, by the European Commission and by the United Kingdom Government. (19) All the parties save for the Hungarian Government attended the hearing, which was held on 4 June 2024.
V. Assessment
31. By its question, the referring court seeks, in essence, to ascertain whether the judicial authorities of a Member State may refuse to execute an arrest warrant issued for the purposes of prosecution by a judicial authority in the United Kingdom under the TCA on the ground that there may be a risk of infringement of Article 49(1) of the Charter because the requested person will, if convicted, be subject to a more severe parole regime than that in force when the alleged offence was committed. Moreover, the referring court seeks guidance on the nature and scope of the review to be carried out before ruling, on that ground, for a refusal to execute the arrest warrant in question.
A. Preliminary observations
1. The TCA and the Charter as the law applicable
32. In order to provide a reply to the question, I shall first determine which legal rules govern the present case and, crucially, which interpretative and jurisprudential yardstick is to be applied, before turning to the substantive issue of what these rules require of the executing judicial authority. (20)
33. As the four arrest warrants (21) were issued after the TCA entered into force, the provisions of that agreement govern the present case. In that connection, I observe that, contrary to the assertion of the referring court, it is not Framework Decision 2002/584 that is to be applied. Indeed, that framework decision (i) was applicable before the United Kingdom’s withdrawal from the European Union (22) (ii) continued to apply during the ensuing transition period (23) and (iii) ceased to apply with respect to the United Kingdom thereafter.
34. In addition, the Charter is applicable. This case comes within the scope of EU law within the meaning of Article 51(1) of the Charter, as the present case concerns the interpretation of the TCA. In so far as the question referred by the national court refers to the obligations of an (executing) judicial authority of a Member State of the European Union, that authority must, when acting within the scope of EU law, respect the requirements of the Charter.
2. Balancing mutual trust and the protection of fundamental rights
(a) General considerations
35. Any system dealing with cross-border surrender and the execution of arrest warrants comes up against seemingly conflicting interests which must, for the system to work, be reconciled. On the one hand, the effectiveness per se of the system must be considered. For a surrender procedure to work, arrest warrants must be executed. This requires and supposes a high level of mutual trust and confidence which translates legally to what is known as the principle of ‘mutual recognition’. This principle implies that there is a broad functional equivalence between participating States as regards their respective legal systems in general and the safeguarding of the fundamental rights of those concerned in particular. On the other hand, those very fundamental rights must be respected. This obligation applies to both the issuing and the executing judicial authority.
36. Typically, the fundamental rights of the requested person are primarily at stake and States are under an obligation to protect those rights. However, the matter can be more complex. There can be situations in which (both issuing and executing) States must safeguard several fundamental rights that do not necessarily, but may, conflict, making it necessary to carry out a delicate balancing exercise of those fundamental rights. For example, an executing judicial authority is under an obligation, obviously, to see that the fundamental rights of the requested person are respected in the issuing State. At the same time, as the case may be, that same executing judicial authority can be under an obligation to ensure what is known as the procedural side of the right to life, enshrined in Article 2 of the Charter, (24) meaning that it must contribute to the conduct of an effective investigation when an individual’s right to life has been breached or is at risk of being breached – which warrants intrinsically a swift surrender to the issuing State. (25)
37. A system requiring arrest warrants to be executed, where to do so would entail a breach of fundamental rights, is not conceivable or, as far as EU law is concerned, compatible with the Charter.
38. Mutual trust is not absolute or a binary concept. Instead, it constitutes, as put figuratively by the Commission at the hearing, a sliding scale. There are different forms and permutations of mutual trust. Put simply, the greater the mutual trust between the parties, the lower the degree of scrutiny, for a judicial authority executing an arrest warrant, regarding whether, in individual cases, the person to be surrendered faces issues in relation to their fundamental rights. However, even in that situation, mutual trust does not mean ‘blind’ trust. (26) This leads us to Framework Decision 2002/584.
(b) Under Framework Decision 2002/584
39. Regarding intra-EU situations, that is to say, situations between Member States, it should be borne in mind that these situations are governed, as the Court put it figuratively in Opinion 2/13, (27) by ‘essential characteristics of EU law [which] have given rise to a structured network of principles, rules and mutually interdependent legal relations linking the [European Union] and its Member States, and its Member States with each other, which are now engaged, as is recalled in the second paragraph of Article 1 TEU, in a “process of creating an ever closer union among the peoples of Europe”’. (28) This legal structure is based on the fundamental premiss that, as stated in Article 2 TEU, each Member State shares, and recognises that it shares, with all the other Member States, a set of common values on which the European Union is founded. (29) That premiss implies and justifies the existence of mutual trust between the Member States that those values will be recognised and, therefore, that EU law implementing them will be respected. (30)
40. Consequently, the highest level of mutual trust regarding situations of surrender is found in Framework Decision 2002/584 on the European arrest warrant. Here, as is regularly recalled by the Court, (31) recital 6 of Framework Decision 2002/584 points out that the European arrest warrant is the first concrete measure in the field of criminal law implementing the principle of mutual recognition, which the European Council (32) referred to as the ‘cornerstone’ of judicial cooperation.
41. This implies that the threshold for an executing judicial authority not to execute an arrest warrant on fundamental rights grounds is extremely high. To this end, the Court has consistently held that executing judicial authorities may refuse to execute a European arrest warrant only on grounds stemming from Framework Decision 2002/584, as interpreted by the Court, and that, while execution of the European arrest warrant constitutes the rule, refusal to execute is intended to be an exception which must be interpreted strictly. (33)
42. Nevertheless, given that it is apparent from Article 1(3) of Framework Decision 2002/584 that that framework decision is not to have the effect of modifying the obligation to respect the fundamental rights guaranteed by the Charter, the Court has held that the risk of breach of those rights may allow the executing judicial authority to refrain, exceptionally and following an appropriate examination, from executing a European arrest warrant. The Court has hitherto held this to be applied to the right not to be subjected to inhuman or degrading treatment or punishment, enshrined in Article 4 of the Charter, (34) to the right to an effective remedy, under Article 47 of the Charter, (35) and to the right to private and family life and the protection of the best interests of the child, guaranteed by Articles 7 and 24 of the Charter respectively. (36)
43. As regards the methodology to be applied by the executing judicial authority in assessing such a risk, the Court habitually requires that authority to carry out a two-step examination. This involves an analysis based on different criteria, meaning that those steps cannot overlap with one another and must be carried out successively. (37) To that end, the executing judicial authority must, as a first step, determine whether there is objective, reliable, specific and properly updated information to demonstrate that there is a real risk of breach, in the issuing Member State, of the fundamental rights. That information may be obtained from, inter alia, judgments of international courts, decisions, reports and other documents produced by bodies of the Council of Europe or under the aegis of the United Nations, or information collected in relevant databases of the European Union Agency for Fundamental Rights (FRA). (38) To take the example of an alleged infringement of Articles 7 and 24 of the Charter, in the context of a second step, the executing judicial authority must determine, specifically and precisely, to what extent the deficiencies identified in the first step of the examination are liable to have an impact on the conditions of detention of the person who is the subject of the European arrest warrant or of the care of his or her children, and whether, having regard to their personal situation, there are substantial grounds for believing that that person or his or her children will run a real risk of breach of those fundamental rights. (39)
44. Moreover, the Court has clarified, with respect to Article 47 of the Charter (40) and to Articles 7 and 24 thereof that a two-step examination is to be carried out, even if the person in question does not invoke systemic or generalised deficiencies. (41) By contrast, the Court has held that an executing judicial authority could be required, on the basis of Article 4 of the Charter, to refuse to execute a European arrest warrant for a seriously ill person where it was unable to rule out a risk of infringement of that article, without having to satisfy the first step of the two-step examination. (42)
(c) Outside Framework Decision 2002/584
45. Turning to the relationship between the EU Member States and the non-member countries, the point of departure is that, axiomatically, the relationship is not and cannot be rooted in the same level of mutual trust. This is so because the general legal relationship between the parties is, by definition, less close.
(1) Member States – Iceland and Norway
46. Iceland and Norway, as two of the three States that are members of the European Economic Area, have concluded an agreement governing a surrender procedure with the European Union. (43) As indicated in the preamble to the agreement and as stressed by the Court, the contracting parties to the agreement have expressed their ‘mutual confidence’ in the structure and functioning of their legal systems and their ability to guarantee a fair trial. (44)
47. In order to dispel any possible doubts regarding terminology, I should like to stress that, to the best of my knowledge, the terms ‘mutual trust’ and ‘mutual confidence’ are used interchangeably. As a matter of fact, in the vast majority of EU official languages, only one term is used. Consequently, given that (i) all the official languages of the European Union are authentic drafting languages and, (ii) therefore, all the language versions of an act of the European Union must, as a matter of principle, be recognised as having the same value, (45) (iii) an interpretation of a provision of EU law thus involves a comparison of the different language versions (46) and (iv) the various language versions of a text of EU law must be given a uniform interpretation, (47) I would propose to the Court not to search for a difference where mutual trust or mutual confidence is referred to in English.
48. Regarding the surrender agreement with Iceland and Norway, the Court has, moreover, found the provisions of this agreement to be ‘very similar to the corresponding provisions of Framework Decision 2002/584’. (48)
49. In that connection, I observe that, in interpreting that agreement, the Court relies on its interpretation of the corresponding provisions in Framework Decision 2002/584. (49) Even where the agreement does not contain a provision similar to a fundamental provision of Framework Decision 2002/584, (50) the Court has found that, ‘despite the absence of an express provision to that effect in the Agreement relating to the surrender procedure, the State parties to that agreement are, in principle, required to act upon an arrest warrant issued by another Member State to that agreement and may refuse to execute such a warrant only for reasons arising from the same agreement’. (51)
50. Furthermore the Court has, in the context of an intra-EU surrender involving Norway incidentally, described the relationship between the European Union and Norway as a ‘special relationship … going beyond economic and commercial cooperation’. (52) This was because Norway ‘is a party to the Agreement on the European Economic Area, participates in the Common European Asylum System, implements and applies the Schengen acquis, and has concluded with the European Union the Agreement on the surrender procedure between the Member States of the European Union and Iceland and Norway’. (53)
51. It is noteworthy that the Court relies, in support of its argument, on Norway’s application of the Schengen acquis. My explanation for this is that this is warranted by the specific features of the cases at issue. Each time, the facts of the cases involved both a State that is a member of the European Economic Area and an intra-EU situation. (54) The present case, on the other hand, is more clear-cut, as it concerns merely a Member State (Ireland) and a non-member country (the United Kingdom).
(2) Member States – Third States
52. In the case which gave rise to the judgment in Petruhhin, (55) one of the questions was, in a situation coming within the scope of the Charter under Article 51(1) thereof, (56) which criteria the executing judicial authority could apply in executing an extradition request from a third State with which the European Union had not concluded an extradition agreement. (57)
53. Relying on relevant case-law from the ECtHR, (58) the Court held that the existence of declarations and accession to international treaties guaranteeing respect for fundamental rights in principle are not in themselves sufficient to ensure adequate protection against the risk of ill-treatment, where reliable sources have reported practices, carried out or tolerated by the authorities, which are manifestly contrary to the principles of the ECHR. (59) It followed for the Court that, in so far as the competent authority of the requested Member State is in possession of evidence of a real risk of inhuman or degrading treatment of individuals in the requesting third State, it is required to assess the existence of that risk when it is called upon to decide on the extradition of a person to that State. (60) To that end, the competent authority of the requested Member State must rely on information that is objective, reliable, specific and properly updated. That information may be obtained from, inter alia, judgments of international courts, such as judgments of the ECtHR, judgments of courts of the requesting third State, and also decisions, reports and other documents produced by bodies of the Council of Europe or under the aegis of the United Nations. (61)
54. I understand the examination required by the Court in the judgment in Petruhhin to be less rigid and strict than the two-step examination under Framework Decision 2002/584. It is the specific circumstances of the case, not necessarily possible deficiencies of the legal system of the issuing State in general, which are decisive.
B. The TCA
1. Legal basis, purpose and general structure
55. As briefly set out in the section relating to the legal framework in this Opinion, the TCA is an association agreement based on Article 217 TFEU. (62) It was adopted as an ‘EU-only’, not a mixed, agreement, meaning that the Member States are not contracting parties.
56. The arguably cardinal question for the provisions of any international agreement is whether (some of) its provisions have direct effect, meaning that they can be relied on by individuals before national (EU) courts. The Court usually resolved this question by examining the spirit, general scheme and terms of the provisions of the international agreement in question. (63) As regards the provisions on ‘surrender’ under Part Three, Title VII, of the TCA, this question can, in my view, be resolved by examining Article 5(1) of the TCA and applying an a contrario reasoning. Pursuant to Article 5(1) of the TCA, with the exception, with regard to the European Union, of Part Three of the TCA, (64) nothing in the TCA or any supplementing agreement is to be construed as conferring rights or imposing obligations on persons other than those created between the parties under public international law, nor as permitting the TCA or any supplementing agreement to be directly relied on in the domestic legal systems of the parties. Given that Part Three of the TCA is expressly excluded, there is no reason to assume that its provisions, once they have met the usual criteria of direct effect, should not have direct effect within the EU legal order.
57. As is clear from Article 216(2) TFEU and the settled case-law of the Court, as an international agreement concluded by the European Union, the TCA is binding on it and forms an integral part of its legal order from its entry into force. (65) In interpreting international agreements, the Court places a particular emphasis on the objectives of an agreement. Accordingly, it is settled case-law that an international treaty must be interpreted not solely by reference to the terms in which it is worded but also in the light of its objectives. (66) Crucially, as a result, the fact that the wording of the provisions of an agreement and the corresponding provisions of EU law are identical does not mean that they must necessarily be interpreted identically. (67)
58. The purpose of the TCA is defined in Article 1 as establishing the basis for a broad relationship between the European Union and the United Kingdom, within an area of prosperity and good neighbourliness characterised by close and peaceful relations based on cooperation, respectful of the parties’ autonomy and sovereignty. Article 3 of the TCA goes on to specify that the parties, in full mutual respect and good faith, are to assist each other in carrying out tasks flowing from the agreement. Interpretation of the agreement is, pursuant to Article 4(1) thereof, to be done in good faith in accordance with its ordinary meaning in context and in the light of the object and purpose of the agreement in accordance with customary rules of interpretation of public international law, including those codified in the Vienna Convention on the Law of Treaties. (68) For greater certainty, neither the TCA nor any supplementing agreement establishes an obligation to interpret their provisions in accordance with the domestic law of either party; (69) similarly, no interpretation of the TCA or any supplementing agreement made by the courts of either party is binding on the courts of the other party. (70)
59. Without going into the details of the corresponding provisions in the EU Treaty and the FEU Treaty, it becomes immediately apparent that this purpose is, as regards its ambition and intent, a far cry from what is found in the preamble to and the first articles of the EU Treaty and the FEU Treaty.
60. Nevertheless, as the TCA continues, and on reading its substantive provisions, there emerges a degree of ambition considerably higher than that alluded to in its opening articles. Thus, Part Three on law enforcement and judicial cooperation in criminal matters, (71) and, more specifically, Title VII of Part Three on surrender, contains a detailed set of rules with reciprocal rights and obligations for the European Union and the United Kingdom.
61. First, Article 524 of the TCA (72) stipulates, for the entire Part Three of the TCA, that (i) the cooperation provided for in Part Three of the TCA is based on the parties’ and Member States’ long-standing respect for democracy, the rule of law and the protection of fundamental rights and freedoms of individuals, including those set out in the Universal Declaration of Human Rights and in the ECHR, and on the importance of giving effect to the rights and freedoms in that convention domestically, and (ii) nothing in Part Three of the TCA modifies the obligation to respect fundamental rights and legal principles as reflected, in particular, in the ECHR and, in the case of the European Union and its Member States, in the Charter.
62. To the extent that such a description is permitted with respect to an international agreement concluded by the European Union and a third State, Article 524 of the TCA is a provision of constitutional significance. Law enforcement and judicial cooperation in criminal matters is, by definition, a field of law that intrinsically involves fundamental rights. For the European Union and the United Kingdom to affirm their mutual commitment to democracy, the rule of law and fundamental rights sends a strong signal as to the closeness of the cooperation covered by Part Three of the TCA and serves as an interpretational yardstick for that entire part.
2. The surrender mechanism under the TCA
63. The objective of Part Three, Title VII, of the TCA is described in Article 596 of that agreement as ensuring that the extradition system between the Member States, on the one hand, and the United Kingdom, on the other hand, is based on a mechanism of surrender.
64. Given that this provision resorts to the terms ‘extradition’ and ‘surrender’, a very short observation regarding terminology is appropriate. In EU law, ‘surrender’ under Framework Decision 2002/584 refers to a situation between two Member States, whereas ‘extradition’ in general refers to a situation between a Member State and a third State. (73) However, when those third States are closely linked to the European Union, such as States that are members of the European Economic Area, the term used is ‘surrender procedures’. (74) The same goes for the TCA. Title VII routinely refers to ‘surrender’ when describing a situation between Member States and the United Kingdom and to ‘extradition’ when referring to a situation between either the Member States or the United Kingdom and a third State. (75) Why, then, does Article 596 of the TCA refer to both extradition and surrender? My explanation for this is that ‘extradition’ is regarded as the standard term in public international law, whereas ‘surrender’ refers to situations involving the European Union and some of its closest partners, as described above. (76)
65. Article 599 of the TCA deals with the scope of the surrender mechanism and specifies when an arrest warrant may be issued. Pursuant to Article 599(1) of the TCA, an arrest warrant may be issued for acts punishable by the law of the issuing State by a custodial sentence or a detention order for a maximum period of at least 12 months or, where a sentence has been passed or a detention order has been made, for sentences or detention orders of at least 4 months. Moreover, as a result of Article 599(3) of the TCA, subject in particular to Article 600, Article 601(1), points (b) to (h), and Article 604 of the TCA, a State is not to refuse to execute an arrest warrant relating, inter alia, to terrorist offences where those offences are punishable by a custodial sentence of at least 12 months.
66. Articles 600 and 601 of the TCA set out a series of mandatory (77) and optional (78) grounds for non-execution of an arrest warrant. Just as in the corresponding provisions of Framework Decision 2002/584, (79) none of these grounds relates directly to fundamental rights in general or, obviously, to Article 49(1) of the Charter in particular.
67. Pursuant to Article 604, point (c), of the TCA, the execution of an arrest warrant by an executing judicial authority may be subject to the guarantee that if there are substantial grounds for believing that there is a real risk to the protection of the fundamental rights of the requested person, the executing judicial authority may require, as appropriate, additional guarantees as to the treatment of the requested person after the person’s surrender before it decides whether to execute the arrest warrant.
68. Article 613 of the TCA governs surrender decisions. According to the first paragraph of that provision, the executing judicial authority is to decide whether the person is to be surrendered within the time limits and in accordance with the conditions defined in Title VII, in particular the principle of proportionality as set out in Article 597. (80) Pursuant to the second paragraph of Article 613 of the TCA, if the executing judicial authority finds the information communicated by the issuing State to be insufficient to allow it to decide on surrender, it is to request that the necessary supplementary information, in particular with respect to Article 597, Articles 600 to 602, Article 604 and Article 606, be furnished as a matter of urgency and may fix a time limit for the receipt thereof, taking into account the need to observe the time limits provided for in Article 615.
69. It is noteworthy that no provision matches Article 1(2) of Framework Decision 2002/584 directly. (81) This, however, does not alter the fact that there is an implicit general obligation for authorities to execute an arrest warrant issued on the basis of the TCA. I understand all the provisions in Part Three, Title VII, of the TCA to be based on this premiss.
70. The provisions of Part Three, Title VII, of the TCA are marked by a high level of trust between the European Union and the United Kingdom as regards a commitment to upholding fundamental rights. A mutual trust that fundamental rights have been, are being and will be protected in future permeates the entire text. (82)
71. It follows from this succinct and by no means comprehensive overview of some of the key provisions of Part Three, Title VII, of the TCA that the European Union and the United Kingdom have established a surrender system which is marked by considerable closeness and a high level of mutual trust. Indeed, the referring court considers the provisions contained in Part Three, Title VII, of the TCA to be ‘identical to the [surrender] arrangements provided for under [Framework Decision 2002/584]’. (83)
72. This statement of the referring court goes to the heart of the present case and warrants a word of caution at this stage. Even though the greater part of the provisions contained in Part Three, Title VII, of the TCA resemble those in Framework Decision 2002/584, to the extent that they are worded identically, there are points on which the two texts differ, (84) a glaring example being the issue of political offences. (85)
3. Obligations of the executing judicial authority
73. This leads us to the core of the present case, which is the question of the obligations of the executing judicial authority with regard to the respect of fundamental rights by authorities of the issuing State. This calls for the following remarks.
74. First, given that the situation in question is within the scope of EU law pursuant to Article 51(1) of the Charter, the executing judicial authority deciding on the execution of an arrest warrant is bound by the Charter in that it must ensure that the surrender of the requested person will not lead to a breach of his or her rights under the Charter.
75. Secondly, the executing judicial authority is to carry out that examination only when such exceptional breach of fundamental rights is alleged by the person subject to the arrest warrant.
76. Thirdly, it is, in my view, futile to attempt to transpose to the letter the two-step examination, applicable since the judgment in Aranyosi and Căldăraru (86) to intra-EU situations, to the system established by Framework Decision 2002/584. As explained in detail above, this test in the case-law is based on the highest level of mutual trust possible within the EU legal order, that is, that of the mutual trust between EU Member States. The level of mutual trust between the European Union and the United Kingdom is high, but not as high as the level of trust underlying Framework Decision 2002/584.
77. Fourthly, mutual trust is not a binary concept, but is rather a sliding scale and, as set out above, the relevant provisions of the TCA are underpinned by a considerable level of mutual trust, which exceeds the trust enjoyed between a Member State and the overwhelming majority of non-member countries. The executing judicial authority is therefore expected, in principle, to execute the arrest warrant and may do so only if there is tangible evidence of a real risk of a breach of fundamental rights. The European Union and the United Kingdom, through the relevant provisions of the TCA, have expressed confidence that the European Union and the United Kingdom will both honour their obligations regarding fundamental rights. There is therefore a presumption, subject to rebuttal, that fundamental rights have been until now protected, are being protected and will also be protected in the future by the contracting parties.
78. In that connection, I propose that the Court (i) as a starting point, apply criteria comparable to those developed in the judgment in Petruhhin, (87) but (ii) that this is on the understanding that the executing judicial authority will be carrying out its own assessment of the fundamental rights relied on.
79. For the present case, should the Irish authorities be in possession of evidence of a real risk of a breach of fundamental rights in the requesting third State, they are required to assess that risk when it is called upon to decide on the extradition of a person to that State. To that end, the executing judicial authority must rely on information that is objective, reliable, specific and properly updated. That information may be obtained from, inter alia, judgments of international courts, such as judgments of the ECtHR, judgments of courts of the requesting third State, and also decisions, reports and other documents produced by bodies of the Council of Europe or under the aegis of the United Nations. The mere existence of declarations and accession to international treaties guaranteeing respect for fundamental rights is in principle insufficient.
1. Crucially, it should be stressed that it is not sufficient for the executing judicial authority to rely merely on the fact that the United Kingdom, following its withdrawal from the European Union, continues to be a member of the ECHR. Similarly, it is not sufficient to refer formally only to the case-law of the courts of the United Kingdom to show that the surrender procedure is compatible with the fundamental right in question. It is for the executing judicial authority to carry out its own examination in order to, figuratively speaking, make up its own mind on whether a surrender is compatible with fundamental rights. This implies that the executing judicial authority cannot simply take note of the existence of relevant judgments of the United Kingdom Courts. While such judgments may constitute constitute an indication that fundamental rights are being respected, the executing judicial authority must still carry out its own assessment and make its own ‘subsumption’ of the matter.
C. Article 49(1) of the Charter
80. While I am obviously aware of the fact that it is ultimately for the referring court to determine whether in the present case there is a risk of an infringement of Article 49(1) of the Charter, I do believe that, based on the information available to it, the Court is in a position to guide the referring court at this stage.
81. It should be borne in mind that the regime permitting conditional release in Northern Ireland was amended with effect from 30 April 2021. Prior to this change, a person convicted of certain terrorism-related offences was eligible for automatic parole after serving half of his or her sentence. Under the regime applicable from that date, the conditional release of such a person has to be approved by a specialised authority and may only take place after the person concerned has served two thirds of his or her sentence.
82. The question is whether this change in the parole regime is contrary to the principle of non-retroactivity, enshrined in the second sentence of Article 49(1) of the Charter.
83. Pursuant to Article 49(1) of the Charter, no one is to be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national law or international law at the time when it was committed. Similarly, no heavier penalty is to be imposed than the one that was applicable at the time the criminal offence was committed. If, subsequent to the commission of a criminal offence, the law provides for a lighter penalty, that penalty is applicable.
84. Article 49 of the Charter thus contains the requirements for the imposition of penalties. This provision does not contain (mere) principles within the meaning of Article 52(5) of the Charter, but lays down enforceable rights. (88)
85. The Court has already held that Article 49 of the Charter must be interpreted as containing the same requirements as those stemming from Article 7 ECHR, (89) thereby confirming the information given in the non-binding but nevertheless instructive (90) explanations relating to the Charter. (91) Incidentally, the wording of the first two sentences of Article 49(1) is identical to that of Article 7(1) ECHR. Accordingly, the relevant case-law of the ECtHR can be relied on. (92)
86. In that connection, I emphasise that the guarantee enshrined in Article 7 ECHR, which is an essential element of the rule of law, occupies a prominent place in the ECHR system of protection, as is shown by the fact that no derogation from it is permissible under Article 15 ECHR. (93)
87. As the referring court itself points out, the ECtHR has rejected the argument that retrospective changes to systems of remission or early release are in breach of Article 7 ECHR, given that such measures do not form part of the ‘penalty’ for the purposes of that article.
88. While the concept of ‘penalty’ is autonomous in scope, (94) the ECtHR (95) draws a distinction in its case-law between a measure that constitutes a penalty per se and a measure that concerns the execution or enforcement of the penalty. Consequently, where the nature and purpose of a measure relates to the remission of a sentence or a change in a regime for early release, this does not form part of the ‘penalty’ within the meaning of Article 7 ECHR. (96)
89. In that connection, the referring court notes that the ECtHR has stated that ‘in practice the distinction between a measure that constitutes a “penalty” and a measure that concerns the “execution” or “enforcement” of the “penalty” may not always be clear-cut’ and that it is possible that a measure taken during the execution of a sentence, rather than merely concerning the manner of execution of the sentence could, on the contrary, affect its scope. Here, the referring court points to the judgment in Del Río Prada v. Spain. The referring court wonders whether and, if so, to what extent that judgment is a departure from previous ECtHR case-law.
90. I do not consider that the ECtHR decision referred to by the national court constitutes a departure from that court’s long-standing case-law on Article 7(1) ECHR.
91. The cited passage of the judgment in Del Río Prada v. Spain refers to previous and consistent case-law of that court. Ergo, the ECtHR has, already before that judgment was delivered, paid very close attention to whether a measure which seemingly concerns the execution or enforcement of a penalty does, in fact, affect the scope of the penalty. In other words, I see no room for asserting, as does MA, that the judgment in Del Río Prada v. Spain shows ‘a more flexible approach on the part of the ECtHR to the application of Article 7 [ECHR] than its previous jurisprudence’. (97)
92. In the judgment in Del Río Prada v. Spain, the terms of imprisonment to which the applicant, Ms del Río Prada, was sentenced, in respect of offences committed between 1982 and 1987, amounted to over 3 000 years. (98) This was subsequently significantly reduced under the Spanish Criminal Code of 1973, which allowed for a maximum of 30 years of actual imprisonment. In that connection, the applicant was entitled to certain remissions of her sentence for work and study in prison. Subsequently, that is to say, after the conviction of the applicant and her release from prison, the Tribunal Supremo (Supreme Court, Spain) introduced a new legal doctrine, (99) under which sentence remissions should be applied to each individual sentence rather than to the maximum 30-year term. This resulted in an extension of the time many prisoners, including Ms del Río Prada, would spend in prison, leading the ECtHR to a finding of infringement of Article 7 ECHR.
93. In doing so, the ECtHR found it crucial that, at the time of the conviction of the applicant and at the time when she was notified of the decision to combine her sentences and set a maximum term of imprisonment, there was no indication of any perceptible line of case-law development in keeping with the Spanish Supreme Court’s judgment in question. (100)
94. The exceptional nature of the judgment in Del Río Prada v. Spain is confirmed by the subsequent decision of the ECtHR in the Devriendt case. (101) Here, regarding convictions of life imprisonment, a Belgian law raised the minimum threshold for parole from 10 to 15 years. (102) This increase occurred between the criminal offences having been committed by the person in question and the (final) sentencing. The ECtHR explicitly distinguished this case from the judgment in Del Río Prada v. Spain and found there to be no infringement of Article 7 ECHR. In particular, it held that the conditional release in question was a method of enforcing a custodial sentence whereby the convicted person serves the sentence outside prison, subject to compliance with the conditions imposed during a specified probationary period and that that case differed in this respect from the judgment in Del Río Prada v. Spain, where the issue concerned a reduction in the sentence to be served and not a mere reduction or adjustment of the conditions of enforcement. (103) It also noted that while the effect of the new regime was to increase the time threshold for eligibility for conditional release, which undoubtedly resulted in a harsher situation for the applicant’s detention, contrary to the situation in the judgment in Del Río Prada v. Spain, such harsher treatment was not to make it impossible to grant conditional release. (104)
95. In order to determine whether a measure taken during the execution of a sentence concerns the manner of execution of the sentence only or, on the contrary, affects its scope, one must examine in each case what the ‘penalty’ imposed actually entailed under the domestic law in force at the material time or, in other words, what its intrinsic nature was. In doing so, one must have regard to domestic law as a whole and how it was applied at the material time. (105)
96. Here, I note that there is no indication whatsoever that sentences applicable to the alleged acts, namely life imprisonment, have changed from the alleged date on which the facts were committed to the present day.
97. Moreover, the fact that, under the amended regime permitting conditional release in Northern Ireland, a person convicted of certain terrorism-related offences is no longer eligible for automatic parole after serving half of his or her sentence, but rather the conditional release of such a person will have to be approved by a specialised authority and may only take place after the person concerned has served two thirds of his or her sentence, does not alter the fact that, even when conditionally released, that person will still be serving the sentence.
98. In conclusion, it can be stated that the regime permitting conditional release does not come within the definition of a ‘penalty’ under the second sentence of Article 49(1) of the Charter and is not, therefore, caught by that provision.
99. Pursuant to Article 52(3) of the Charter, in so far as the Charter contains rights which correspond to rights guaranteed by the ECHR, the meaning and scope of those rights are the same as those laid down by the ECHR. This does not prevent EU law from providing more extensive protection.
100. To the extent that this raises the question whether Article 49(1) of the Charter has a broader scope or imposes stricter requirements than Article 7(1) ECHR, I see no scope for considering or reason to consider that this might be the case. In particular, as underlined by the Commission, there is no discernible constitutional tradition common to the Member States to the effect that the scope of Article 49(1) of the Charter would or should be broader than that of Article 7(1) ECHR.
VI. Conclusion
101. In the light of the foregoing considerations, I propose that the Court answer the question referred by the Supreme Court (Ireland) as follows:
Where a Member State receives a request from the United Kingdom, under the provisions of Part Three, Title VII, of the Trade and Cooperation Agreement between the European Union and the European Atomic Energy Community, of the one part, and the United Kingdom of Great Britain and Northern Ireland, of the other part, seeking the surrender of a requested person, and where argument is made and evidence adduced to the effect that surrender of the requested person would be in breach of his or her rights under Article 49(1) of the Charter of Fundamental Rights of the European Union, the judicial authorities of the Member State:
– must make their own assessment so as to determine whether the surrender will prejudice the rights referred to in Article 49(1) of the Charter of Fundamental Rights;
– must in this respect rely on information that is objective, reliable, specific and properly updated;
– may refuse surrender where there are substantial and established grounds to believe that the requested person would be exposed to a real risk that his or her fundamental rights guaranteed by Article 49(1) of the Charter of Fundamental Rights would be breached in case of a surrender.
The fact that the requested person will, if convicted, be subject to a more severe parole regime than that in force on the day on which the alleged offence was committed does not, as such, constitute in itself a breach of Article 49(1) of the Charter of Fundamental Rights.