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Decoding the Advocate General's opinion in RO- what does it spell for the post-Brexit security deal?

admin - August 17, 2018 - Brexit

In 2018, the Irish High Court halted extraditions from Ireland to the UK in around 20 cases under the European Arrest Warrant, while it referred questions to the CJEU on whether extradition should be allowed given the uncertainty posed by Brexit. In the case of Minister for Justice and Equality v RO, the Court referred questions to the CJEU on whether extradition should continue to be allowed given the uncertainty over the currently non-existent future security deal, and the threat to fundamental rights posed by Brexit (citing concern over whether defendants would be able to fully enjoy their rights “under the Treaties, the Charter or relevant legislation”).

On 7th August, the Advocate General (AG) of the CJEU issued an opinion on the case stating that extraditions to the UK should not be stopped because of Brexit. However, the opinion also contains some interesting clues as to how the EU might be approaching key ‘red lines’ when it comes to the future EU-UK security deal.  

Fundamental rights- it was considered ‘highly probable’ that if RO was surrendered to the UK, he would remain in prison after 29th March 2019 i.e. After the UK withdraws from the EU. RO therefore alleged that due to the uncertainty of the future arrangement between the UK and the EU, there was no assurance that he would be entitled to the same respect for the fundamental rights currently enjoyed under the EU Charter of Fundamental Rights. However, the Opinion refutes this, stating that ‘there is no basis to question the UK’s continued commitment to fundamental rights’, and maintains that the UK is still a Member State of the EU, and bound by relevant treaties. Even after the UK departs the EU, the Opinion then further states that ‘the UK has decided to withdraw from the EU, not to abandon the rule of law or the protection of fundamental rights’. This response is somewhat bizarre, given that the UK Withdrawal Bill explicitly states that the UK will not to keep the fundamental rights enshrined under the Charter. Furthermore, although not addressed in the case, the fact that the UK has only signed up to two of the Directives under the Roadmap for strengthening procedural rights and has not indicated any intention to sign up to future Directives, doesn’t seem to signal a ‘continued commitment’ to fundamental rights.

The test proposed by the AG to determine future extraditions to States leaving the EU was whether at the time of executing the EAW, the executing State expects the issuing State to abide by the content (including rights) contained in the Framework Decision, and that:

“Such a presumption can be made if other international instruments will continue to apply to the Member State that has left the EU. Only if there is tangible evidence to the contrary can the judicial authorities of a Member State decide not to execute the arrest warrant.”

We may presume, then, that one of the ‘international instruments’ referred to here is the European Convention on Human Rights, which the Opinion states that the UK is bound by. Firstly, the rights contained in the ECHR are not as robust as those contained in the Charter,[1] or the Roadmap on procedural rights. This is why the Roadmap was introduced, as it was recognised that as mutual recognition resulted in more cross-border cooperation, the ECHR was not sufficient to protect fundamental fair trial rights.

Despite this, the Opinion references the ECHR and the European Convention on Extradition, seeming to imply that the UK’s membership of these two instruments is sufficient to signal the continued commitment to fundamental rights necessary for mutual recognition under the EAW to function. Although the Opinion references that Theresa May previously ‘pleaded for the UK to leave the ECHR’, the fact that the current Conservative Manifesto does not pledge to leave it seems to suffice as evidence of the UK’s continued commitment to fundamental rights.

CJEU Jurisdiction- another issue raised by the case is that although RO will have recourse to the UK courts on all of the issues raised as potential grounds for refusal of extradition ‘he would be deprived of the opportunity of having those matters of EU law definitively determined by the Court of Justice’. Leaving the jurisdiction of the CJEU has been one of the UK Government’s so-called ‘red lines’ from the beginning of negotiations, and indeed, finding an appropriate dispute mechanism as well as a mechanism that can ensure the case law and legislation of the UK and the EU remain in harmony after Brexit is a key challenge in the negotiations of a new security treaty.

However, instead of highlighting the crucial role of the CJEU in these matters, the AG’s Opinion actually states the jurisdiction is not an impediment to the functioning of the EAW in this case, since the CJEU only gained full jurisdiction over these matters 5 years after the entry into force of the European Arrest Warrant (when the Treaty of Lisbon came into force in 2009).

‘Ergo, before the entry into force of the Treaty of Lisbon, this case could not have reached the Court of Justice. Nor could a UK court have made a request for a preliminary ruling. And yet, even in that not too distant past, the EU was firmly anchored on the rule of law, including access to justice.’

The Opinion clearly regards the UK as a long-standing member of the EU and mutual recognition measures, and implies that the trust required to be part of these measures will not disappear once the UK ceases to be a member of the EU. This is concerning given the unique position that the UK has traditionally been able to negotiate for itself in the EU Area of Freedom, Security and Justice. If the UK is to continue to be able to participate in harsh security measures, it should be required to adhere to the same fundamental rights as other States who participate. Furthermore, the lack of attention given to fundamental rights, and the implication that the ECHR is sufficient for rights protections, doesn’t bode well for people facing extradition from the UK in the future either. If the future security agreement only requires ECHR membership for a mutual-recognition style treaty to function, this will represent an erosion of fundamental rights protections many across Europe have fought so hard to win since the introduction of the EAW.

Read more about Fair Trials’ position on the future security agreement here.

 

[1] You can see a briefing from UK NGO Liberty on the Charter and how it differs from the ECHR here

If you are a journalist interested in this story, please telephone Fair Trials’ press department on +44 (0) 20 7822 2370 or +32 (0) 2 360 04 71.

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