Opinion of Advocate General Szpunar delivered on 27 June 2024.

• Jurisdiction: European Union
• Celex Number: 62024CC0202
• ECLI: ECLI:EU:C:2024:559
• Date: 27 June 2024
• Court: Court of Justice (European Union)

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...