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Brexit implications on the European arrest warrant?

Rita Franceschet , 15 octobre 2018

In the case C-327/18PPU, the Court of Justice of the European Union (“the Court”) was for the first time confronted with the interpretation of article 50 TUE relating to the withdrawal of the United Kingdom from the EU and the Council Framework Decision on the European arrest warrant. In this context, the Irish High Court requested a preliminary ruling from the Court in order to determine whether Ireland is required to decline to surrender to the United Kingdom (“the UK”) a person who is the subject of a European arrest warrant and who claimed that, given the uncertainty as to the law which will be in place in the United Kingdom after its withdrawal from the EU, the rights which he enjoys under EU law will not be guaranteed.

By combining a textual and a teleological interpretation, the Court recalled the principles underlying the European arrest warrant, most notably the principles of mutual trust and mutual recognition, while noting that the Framework Decision expressly enumerates a limited number of exceptions to the execution of such a warrant. Quoting its recent judgment Aranyosi and Căldăraru, the Court recalled that the principles of mutual trust and mutual recognition could exceptionally be limited in exceptional circumstances, as for instance in the case when the person surrendered may be subject to inhuman or degrading treatment within the meaning of article 4 of the Charter of Fundamental Rights of the European Union (“the Charter”). After stressing the absolute nature of this provision of the Charter, the Court further evoked the need to require additional information to the issuing authority to assess whether there is a real risk of inhuman or degrading treatment.

Continuing its line of reasoning, the Court stated that a mere notification by the UK of its intention to withdraw from the EU cannot be regarded as an exceptional circumstance since it does not have the effect of suspending the application of EU law in the UK as long as the actual withdrawal from the EU does not take place.

Turning to the risk of being exposed to human and degrading treatment in the issuing country, the Court affirmed, as a general rule, the inappropriate character of a refusal to surrender based exclusively on this ground, as the person surrendered may have recourse to legal remedies in the issuing country to challenge the lawfulness of his conditions of detention.

Concerning the protection of rights guaranteed by EU law after the actual withdrawal of the UK, the Court stressed that the UK is a State party to the European Convention on Human Rights and has incorporated its article 3 enshrining the prohibition of inhuman or degrading treatment into its national law. Similarly, article 27 of the Framework Decision on the European arrest warrant embodying the rule of speciality and article 28 of the same Decision governing the limits on subsequent surrender or extradition to a State other than the executing Member State are also enshrined in two provisions of the European Convention on Extradition which have been transposed into UK domestic law. Concerning the last right evoked by the defence, namely article 26 of the Framework Convention concerning the deduction by the issuing Member State of any period of custody served in the executing Member State, the Court found that the UK has also incorporated this obligation into its national law and that it applies, irrespective of EU law, to any person who is extradited into the UK.

Even in the event the aforementioned rights were not be the subject of a reference to the Court for a preliminary ruling after the withdrawal of the UK, this will not alter the Court’s analysis as those rights are not dependent from the Framework Decision and there is no concrete evidence to suggest that the surrendered person will be deprived of the opportunity to assert those rights before the courts of the UK after its withdrawal.

As a conclusion, it may be stated that the Court adopts a reasonably prudent and careful stance vis-à-vis the uncertainty as to the Brexit negotiations, without meddling in risky assumptions or political discussions and applying the law which is still in force, and at the same time without losing sight of the respect of fundamental rights and other more extended rights that are deeply intertwined with the principle of mutual trust and mutual recognition guaranteed by European legislative instruments.

Catégorie: Action extérieure