Article 49 - Principles of legality and proportionality of criminal offences and penalties
Key facts of the case:
Reference for a preliminary ruling – 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 – Judicial cooperation in criminal matters – Arrest warrant – Surrender – Adverse amendment to the parole system in the issuing State – Risk of a breach of a fundamental right – Article 49(1) of the Charter of Fundamental Rights of the European Union – Principle of legality of criminal offences and penalties
Outcome of the case:
In the light of the foregoing considerations, I propose that the Court answer the question referred by the Supreme Court (Ireland) as follows:
The second sentence of Article 49(1) of the Charter of Fundamental Rights of the European Union must be interpreted as meaning that the concept of ‘heavier penalty’ contained in that provision does not, in principle, cover a situation where the legal provisions governing a parole regime have been amended to provide that a right to automatic entitlement to release on licence, once the first half of an imposed sentence has been served, has been replaced by a right to release once at least two thirds of an imposed sentence have been served, where that release is dependent on an assessment conducted by Parole Commissioners.
26. It is in those circumstances that, by order of 22 October 2024, received at the Registry of the Court of Justice on 24 October 2024, the Supreme Court decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:
‘Would the application, to a person convicted of an offence or offences and sentenced to a determinate sentence(s), of amended rules having the effect that he or she will have to serve at least [two thirds] of such sentence and then will have only a conditional right to release on licence dependent on an assessment of dangerousness, whereas under the rules applicable at the time of the alleged offences, that person would have been automatically entitled as a matter of law to release on licence once he [or she] had served [one half] of that sentence, involve the imposition of a “heavier penalty” on the convicted person than the penalty applicable at the time of the alleged offences such as to amount to a breach of Article 49(1) of the Charter?’
33. In its judgment of 29 July 2024, the Court held that Article 524(2) and Article 604(c) of the TCA must be interpreted as meaning that, where a person who is the subject of an arrest warrant invokes a risk of a breach of Article 49(1) of the Charter in the event of surrender to the United Kingdom, on account of a change, which is unfavourable to that person, in the conditions for release on licence, which occurred after the alleged commission of the offence for which that person is being prosecuted, the executing judicial authority must undertake an independent examination as to the existence of that risk before deciding on the execution of that arrest warrant. Following that examination, that executing judicial authority will have to refuse to execute that arrest warrant only if, after requesting additional information and guarantees from the issuing judicial authority, it has objective, reliable, specific and properly updated information establishing that there is a real risk of a change in the actual scope of the penalty provided for on the day on which the offence at issue was committed, involving the imposition of a heavier penalty than the one that was initially provided for.
34. As regards, more specifically, the scope of Article 49(1) of the Charter, the Court referred to: (1) its consistent case-law to the effect that that article contains, at the very least, the same guarantees as those provided for in Article 7 ECHR, which must be taken into account by virtue of Article 52(3) of the Charter as a minimum threshold of protection; and (2) the ECtHR’s consistent case-law to the effect that, for the purposes of applying Article 7 ECHR, a distinction must be drawn between a measure that constitutes in substance a ‘penalty’ and a measure that concerns the ‘execution’ or ‘enforcement’ of the penalty. Thus, where the nature and purpose of a measure relate to the remission of a sentence or a change in the regime for release on licence, this does not form part of the ‘penalty’ within the meaning of Article 7 ECHR.
35. The Court went on to conclude that a measure relating to the execution of a sentence will be incompatible with Article 49(1) of the Charter only if it retroactively alters the actual scope of the penalty provided for on the day on which the offence at issue was committed, thus entailing the imposition of a heavier penalty than the one initially provided for. Although that is not, in any event, the case where that measure merely delays the eligibility threshold for release on licence, the position may be different, in particular, if that measure essentially repeals the possibility of release on licence or if it forms part of a series of measures which have the effect of increasing the intrinsic seriousness of the sentence initially provided for.
36. By its question, the referring court seeks, in essence, to ascertain whether the second sentence of Article 49(1) of the Charter must be interpreted as meaning that the concept of a ‘heavier penalty’ contained in that provision covers a situation where the legal provisions governing a parole regime have been amended to provide that a right to automatic entitlement to release on licence, once the first half of an imposed sentence has been served, has been replaced by a right to release once at least two thirds of an imposed sentence have been served. That release is dependent on an assessment conducted by Parole Commissioners.
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49. The principle of legality is contained in Article 49(1) of the Charter, pursuant to which 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 it was committed.
50. 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.
51. These rights are, as fundamental rights, legally enforceable.
52. Article 49(1) of the Charter is primarily modelled on the partially identically worded Article 7 ECHR. It must be interpreted as containing, at the very least, the same requirements as those stemming from Article 7 ECHR. This is confirmed by the (non-binding) explanations relating to the Charter.
53. Article 7 ECHR is a cardinal provision within the convention and is an indispensable element of the rule of law. No derogation from it is permissible under Article 15 ECHR.
54. This brings me to the case-law of the ECtHR, which is relied upon for the purpose of interpreting Article 49(1) of the Charter. There is, indeed, a solid body of case-law by that court concerning non-retroactivity, that is to say, the second sentence of Article 7(1) ECHR under which no heavier penalty can be imposed than the one that was applicable at the time the criminal offence was committed.
58. It is obviously ultimately up to the referring court to determine whether, in the present case, there is a risk of an infringement of Article 49(1) of the Charter if MA were to be surrendered to the United Kingdom. Moreover, we are dealing with a considerable amount of uncertainties, given that there is no conviction yet and that surrender of MA is being sought with respect to the commission of alleged offences. It is necessarily unknown at present whether, in the event of a conviction, a term of imprisonment or life imprisonment will be imposed as a penalty. All of this is, nevertheless, in the end irrelevant, since the question of the referring court refers explicitly to a determinate sentence. As a consequence, it will be for the Court to examine the amended legislation with respect to determinate sentences (only).
89. The delay of the eligibility threshold for release on licence, on its own, does not, according to the Court’s findings in Alchaster, appear to fall within the scope of Article 49(1) of the Charter. We can rely on the judgment in Del Río Prada v. Spain and the decision in Devriendt here in that the Strasbourg Court is very clear in asserting that a delay in the eligibility threshold for release on licence forms part of the execution of a sentence and, therefore, does not fall within the remit of Article 7(1) ECHR.
(ii) Release conditional on assessment of Parole Commissioners
90. The Court stated, in essence, in Alchaster that the scope of Article 49(1) of the Charter potentially covers a situation where the measure in question essentially repeals the possibility of release on licence or forms part of a series of measures which have the effect of increasing the intrinsic seriousness of the sentence initially provided for.
99. This leaves us with the question whether, in a situation such as that of the present case, Article 49(1) of the Charter provides or should provide more extensive protection than Article 7(1) ECHR.
(iii) On Article 52(3) of the Charter
100. 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. It must be stressed that Article 52(3) of the Charter contains a guarantee and not a simple option for the European Union to ensure that the meaning and scope of the corresponding rights under the ECHR are not undermined. At the same time, that provision specifies that this does not prevent EU law from providing more extensive protection.
101. I see, however, no reason for considering that this should be the case. The Court of Justice has held that Article 49 of the Charter contains, at the very least, the same guarantees as those provided for in Article 7 ECHR, which must be taken into account by virtue of Article 52(3) of the Charter as a minimum threshold of protection. However, that statement, on its own, merely affirms the wording of Article 52(3) of the Charter.
102. As observed by the Commission, there is no discernible constitutional tradition common to the Member States under which the scope of Article 49(1) of the Charter is or should be broader than that of Article 7(1) ECHR.
103. Nor do I see any aspects specific to the EU legal order which would warrant more far-reaching protection. There may be areas of law where there are good reasons for the European Union to provide for greater protection than under the corresponding ECHR right. That is not the case here, however. We should remember the intrinsic and natural tension between the potential invoking of Article 49 of the Charter and the high level of trust (albeit not mutual trust) which continues to persist between the European Union and the United Kingdom as regards respect for fundamental rights. In such a situation, the careful balance between those two principles is best struck by a level of fundamental rights protection which is aligned to the level of the ECHR. Here I can concur, once more, with the late Lord Bingham, when he stated that ‘the meaning of the [ECHR] should be uniform throughout the [States] party to it. The duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less.’ The same should apply for the Court in the present case.
(3) Final remarks
104. I should like to end this Opinion with two final remarks, in the spirit of which the referring court must carry out its assessment.
105. First, the present case is confined to the guarantees provided for in Article 7(1) ECHR and Article 49 of the Charter. As has been demonstrated in this Opinion, measures governing the execution of a sentence may not, in principle, be scrutinised under Article 7(1) ECHR. Nevertheless, we should not lose sight of the fact that prisoners continue to benefit from a whole range of other fundamental rights, such as the right to vote under Article 3 of the (first) Protocol to the [ECHR] or certain rights contained in the guarantee for respect for private and family life, home and correspondence under Article 8 ECHR, to mention just two examples.