EU-UK Surrender Agreement: A Copy of the EU-Iceland and Norway One?

Since Brexit, more precisely since 31 December 2020, the European Arrest Warrant (EAW) system no longer applies between the EU and the UK (also see Chloé Brière). Instead, a new surrender arrangement incorporated into the EU-UK Trade and Cooperation Agreement (also see Mark Konstantinidis and Vasiliki Poula) has been established. The EU-UK Trade and Cooperation Agreement originally entered into provisional application until the end of February, but on 23 February 2021, the EU-UK Partnership Council decided to extend the provisional application to 30 April 2021, to allow sufficient time for the Agreement to be translated into all the EU official languages and to enable ratification by the European Parliament. By the date of or at the latest two months after entry into force and provisional application of the Trade Agreement, the EU and UK shall make notifications relating to the application of “political offence exception”, “national exception” and “consent to surrender”, the EAW could still be used provided the process was initiated before the end of the transition period. The change from the EAW system to the new Surrender Agreement is important for both the UK and the EU. Yet it is not the first time that the EU has concluded a surrender arrangement with a close non-EU partner. Since the introduction of the EAW Framework Decision (EAW FD) in 2002, the EU also concluded the Surrender Agreement with Iceland and Norway (EU-Iceland and Norway Surrender Agreement) based on the EAW and which entered into force on 1 November 2019. The EU-UK surrender arrangement, besides being inspired by the EAW, also takes much from the EU-Iceland and Norway Surrender Agreement.

It is evident that efficiency and simplicity are emphasized both in the EU-UK surrender arrangement and the EU-Iceland and Norway Surrender Agreement. However, there are differences between the two, and these differences show that the EU-UK surrender arrangement has included some improvements based on the lessons learned from the EU-Iceland and Norway Surrender Agreement as well as the EAW system, and that some compromises have also been made in light of the actual political and legal relationship between the EU and the UK. The details can be analysed from the below four factors.

Efficiency is protected substantively

Essentially, the EU-UK surrender arrangement is also based on an ‘arrest warrant’（Art. 78 LAW SURR.(Surrender)）, which is a judicial decision issued by the judicial authorities (which may be a judge, a court, or a public prosecutor under the domestic law) in the EU Member States and the UK. From this, we can say that the EU-UK surrender arrangement chooses the basic EAW model like the EU-Iceland and Norway Surrender Agreement instead of a traditional extradition system where both the judicial and ministerial authorities have important roles to play. By removing the ministerial authorities from the cooperation system the whole surrender system will be speeded up. Efficiency was created under the original EAW system and shared both by the EU-UK surrender system and the EU-Iceland and Norway surrender system. Moreover, as will be explained below, the EU-UK surrender system has also followed a series of traditional substantive guarantees like the EU-Iceland and Norway surrender system to improve the efficiency of the surrender mechanism, but the compromise made is noticeable when compared to the EAW.

In terms of the condition of double criminality, the EAW abolished the double criminality requirement for 32 categories of offences, but retained the double criminality check for other offences (Art. 2 EAW FD). In contrast, under the EU-UK surrender arrangement, the requirement of double criminality applies in a general way, with some exceptions based on reciprocity (Art. 79 LAW SURR.). This approach is very similar to the EU-Iceland and Norway surrender system (Art. 3). Hence, as a principle, surrender is subject to the condition that the acts for which the arrest warrant has been issued constitute an offence under the law of the executing state. But the UK and EU acting on behalf of any of EU Member States can waive the double criminality check for 33 categories of offences on the basis of reciprocity in a general way by notification at any time to the Specialised Committee on Law Enforcement and Judicial Cooperation (Art. 79(4) LAW SURR). There is also a small difference with the EU-Iceland and Norway surrender system which specifically categorizes ‘grievous bodily injury’ as another group of listed offences and adds ‘bribery’ into the corruption group (Art. 79 (5) LAW SURR.).

With regard to grounds to refuse the surrender, in the EU-UK surrender arrangement three of the same mandatory grounds (Art. 80 LAW SURR.) as in the EU-Iceland and Norway Surrender Agreement (Art. 4) are applied: amnesty, ne bis in idem, and age. These limited mandatory grounds to refuse the surrender can also find their origin in the EAW system (Art. 3 EAW FD). Next, most of the optional grounds to refuse the surrender mimic those of the EU-Iceland and Norway Surrender Agreement, with two others added which mainly concern human rights and will be particularly addressed in the following section.

Regarding the exception of political offence, one may recall that the EAW system does not recognize this exception, which means that the ‘exception of political offence’ principle used in traditional extradition cannot be applied. Comparatively, the EU-UK Surrender Agreement is more similar to the EU-Iceland and Norway Surrender Agreement (Art. 6), namely, the exception of political offence will not apply but the UK and any of the EU Member State can make a notification by the date of or at the latest after two months of the entrance of the Agreement that non-application of the political offence exception will only be given in relation to specific offences on the basis of reciprocity (Art. 82 LAW SURR.).

The same approach also applies to the principle of nationality, that is, generally nationality cannot be a ground to refuse the surrender, but the EU Member States and the UK can give notice that its own nationals will not be surrendered or that the surrender of its own nationals will be in accordance with certain specified conditions (Art. 83 LAW SURR.). In contrast to the EU-Iceland and Norway surrender system (Art.7), the EU-UK Surrender Agreement also obligates the executing state to apply the ‘aut dedere aut judicare’ principle if it rejects the surrender of its own nationals (Art. 83(3) LAW SURR.).

The surrender procedure is simplified

Executing the surrender request based on specific guarantees relating to the trial or sentencing given by the issuing state has been a very important cooperation method in the EAW system (Art. 5 EAW FD) as well as in the EU-Iceland and Norway surrender system (Art. 8), as it offers more chances to surrender instead of direct refusal. The EU-UK surrender arrangement also requires that, in some situations, guarantees should be offered by the issuing state, including when the person who is the subject of an arrest warrant for the purposes of prosecution is a national or resident of the executing state and the offence on which the arrest warrant is based is punishable by a custodial life sentence or a lifetime detention order in the issuing state (Art. 84 LAW SURR.). These guarantees are not only meant to protect the rights of the requested persons and to respect the differences between the legal systems of the requesting and requested countries, but also to safeguard the efficiency of the surrender procedure.

A strict time limit is also required. Simplicity has been one highlight of the EAW and the EU-Iceland and Norway surrender systems, and the same holds true for the EU-UK surrender system. In cases where the requested person consents to surrender, the final decision on execution of the arrest warrant should be taken within 10 days from when the consent was given. In other cases, the final decision on the execution shall be taken within 60 days from when the requested person was arrested. In specific cases, the time limit may be extended by a further 30 days (Art. 95 LAW SURR.). These time limits are identical to the EAW (Art. 17 EAW FD) and the EU-Iceland and Norway surrender system (Art. 20).

Additionally, the EU-UK Surrender Agreement also requires that reasons must be given for any refusal to execute an arrest warrant (Art. 95(6) LAW SURR.). This requirement will contribute to a reliable and dependable cooperation under the EU-UK surrender arrangement.

In terms of the specialty principle, there can be a partial waiver. Under the EU-UK surrender system, the parties can give notice that consent will be presumed to have been given for the prosecution, sentencing, or detention of a person for an offence committed prior to the person’s surrender, unless in a particular case the executing judicial authority states otherwise in its decision on surrender(Art. 105 LAW SURR.). The same logic is also applied to subsequent surrender or extradition (Art. 106 LAW SURR.), and under certain conditions (such as the requirement that the requested person does not leave the territory of the state to which he/she has been surrendered within 45 days of his/her final discharge), the subsequent surrender or extradition can be done without the consent of the executing judicial authority. This is similar to the conditions under the EU-Ireland and Norway Surrender Agreement (Art. 31).

Notwithstanding the emphasis on efficiency and simplicity, the EU-UK surrender arrangement also strikes a balance on human rights protection, as will be explained in the next section.

Human rights protection is enhanced on the whole

Compared to the EAW system and the EU-Iceland and Norway surrender system, the EU-UK surrender enhances the importance of human rights protection by explicitly adding more basic principles, optional refusal grounds, and guarantees, as well as by granting more rights to requested persons.

The principle of mutual recognition is the cornerstone of the EAW; however, neither the EU-Iceland and Norway surrender nor the EU-UK surrender is based on mutual recognition. Rather, like the EU-Iceland and Norway surrender system, the EU-UK surrender is based on reciprocity, and the obligation to surrender has been mitigated compared to that under the EAW system. Under the reciprocity logic, the UK and EU Member States have more discretion to refuse the surrender for the sake of human rights, such as to protect their own nationals, to apply the double criminality check and the exception of political offences as explained above.

Under the EU-UK surrender system, cooperation through the arrest warrant shall be necessary and proportionate. Indeed, the principle of proportionality has been inserted explicitly in the EU-UK Surrender Arrangement (Art. 77 LAW SURR.). Pursuant to this principle, the issuing state has the obligation, before issuing the arrest warrant, to take account of the interests of the victims, the rights of the requested person, the seriousness of the act, the possibility of a less coercive measure, and the possibility of long periods of pre-trial detention. Such obligation was not written into the EAW FD, but it was strongly advised that an EAW should always be proportional to its aim and the issuing judicial authorities should consider whether issuing an EAW is justified in a particular case.

Furthermore, the EU-UK surrender arrangement adds another two important optional grounds to refuse the surrender compared to the EU-Iceland and Norway Surrender Agreement. Trial in absentia is the first one. In the EU-Iceland and Norway Surrender Agreement, if the arrest warrant is issued pursuant to a conviction rendered in absentia, the surrender may be subject to the condition that the issuing judicial authority gives an assurance that the requested person can apply for retrial of the case after the surrender (Art. 8); however, in the EU-UK surrender arrangement, if the arrest warrant is issued pursuant to a conviction rendered in absentia, the execution of the arrest warrant may be refused (Art. 81 LAW SURR.). Initially, this was not an option in the EAW system, under which trial in absentia was not an optional ground to refuse the surrender, until the enactment of Framework Decision 2009 guaranteeing the right to a fair trial of individuals including in the surrender procedure (Art. 4a EAW FD).

Second, the EU-UK surrender arrangement entails a human rights ground for refusal. This is in contrast to the EAW system and the EU-Iceland and Norway Surrender Agreement, which do not provide for human rights as a mandatory or optional ground to refuse the surrender. The EU-UK surrender arrangement recognizes that the surrender may be refused if there are reasons to believe, on the basis of objective elements, that the arrest warrant has been issued for the purpose of prosecuting or punishing a person on the grounds of the person’s sex, race, religion, ethnic origin, nationality, language, political opinions, or sexual orientation, or that that person’s position may be prejudiced for any of those reasons (Art. 81 LAW SURR.). Moreover, if there is a risk of fundamental rights breach, the executing judicial authority may require additional guarantees as to the treatment of the requested person after the person’s surrender before it decides whether to execute an arrest warrant (Art. 84 LAW SURR.). Although under the EAW system, a guarantee relating to prison conditions and other human rights protection elements can be requested from the issuing state, the refusal of surrender for this reason can only be exceptional and mutual recognition is emphasized. Comparatively, the EU-UK surrender arrangement offers more discretion to the EU Member States and the UK to refuse the surrender for the sake of human rights protection, and this is in line with the fact that a EU-UK surrender is not based on the principle of mutual recognition.

Moreover, under the EU-UK surrender arrangement, in addition to enjoying the right to information, the right to an interpreter, the right to a lawyer versed in the law of the executing state, which have all been written into the EAW system and the EU-Iceland and Norway Surrender Agreement, the requested person has the additional right of access to the consular authorities of the person’s state of nationality or state of residence and the right to appoint a lawyer in the issuing state for the purpose of assisting the lawyer in the executing state(Art. 89 LAW SURR.). In particular, writing into the surrender arrangement the right to a lawyer in the issuing state will greatly enhance the human rights protection of the requested person in both the executing state and the issuing state post-surrender. Comparatively, this right has not been fully achieved under the EAW or the EU-Iceland and Norway surrender systems.

Dispute settlement is more diplomatic

Under the EAW system, the whole surrender procedure is under the control of the judicial authorities from the domestic level to the EU level, that is to say, any dispute between the states relating to the surrender can be ultimately settled through the rulings issued by the Court of Justice of the European Union (CJEU). Under the EU-Iceland and Norway surrender system, any dispute regarding the interpretation or the application of the Surrender Agreement may be referred to a meeting of representatives of the governments (Art. 36), and this Surrender Agreement also requires to be kept under constant review the development of case law of both the CJEU and the competent courts of Iceland and Norway (Art. 37). Therefore, the dispute settlement mechanism in the EU-Iceland and Norway surrender system differs from the EAW system to a large degree by ‘politicizing’ the decision-making procedure. However, the dispute settlement in the EU-UK Surrender Agreement has become even more diplomatic and is, comparatively speaking, less bound by case law.

Under the EU-UK surrender arrangement, if one party considers that the other party has breached its obligation or if there is dispute over the Agreement’s interpretation, they should enter into consultations to reach a mutually agreed solution (Art. 4 LAW DS(Dispute Settlement)). The complaining party may request that the consultations be held in the framework of the Specialized Committee on Law Enforcement and Judicial Cooperation or in the framework of the Partnership Council. Since Brexit, it is difficult to anticipate any references from the UK to the CJEU for preliminary rulings on the EAW. After the completion of transition period, UK courts and tribunals are not bound by any principles laid down or any decisions made by the CJEU, but may have regard to anything done on or after the completion of transition period by the European court (see Dorothy Livingston).

Conclusion

It is clear that post-Brexit, the UK and the EU have taken the EU-Iceland and Norway approach to establish a new surrender system, which departs from more traditional extradition and is closer to the EAW system. However, in contrast to the EAW system, both the EU-UK surrender arrangement and the EU-Iceland and Norway Surrender Agreement have refused the mutual recognition principle as the cornerstone, and the obligations to surrender have been greatly diluted.

On the whole, the EU-UK surrender arrangement mimics the EU-Iceland and Norway surrender arrangement both in terms of substantive principles and the procedures to guarantee the efficiency and simplicity of the surrender, but the differences between the two systems are also evident. The EU-UK surrender system has enhanced the human rights protection to a higher level by including more checks and requirements for a successful surrender. The dispute settlement in the EU-UK surrender arrangement is also more diplomatic, by not formalizing the role of the case law of Court of Justice of the European Union. This suggests a reduction in mutual trust and a bigger divergence of legal systems under the EU-UK surrender arrangement.