62024CJ0743_RES
Case C‑743/24 [Alchaster II] (
i
)
Minister for Justice and Equality,
v
MA
(Request for a preliminary ruling from the Supreme Court (Ireland))
Judgment of the Court (Grand Chamber) of 3 April 2025
(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 – Surrender of a person to the United Kingdom for criminal prosecution – Risk of breach of a fundamental right – Second sentence of Article 49(1) of the Charter of Fundamental Rights of the European Union – Principle that offences and penalties must be defined by law – Changes, to the detriment of the sentenced person, to the licence regime)
Fundamental rights – Charter of Fundamental Rights – Principle that offences and penalties must be defined by law – Affirmed both by the Charter of Fundamental Rights and by the European Convention on Human Rights – Identical meaning and scope – Level of protection provided for by the Charter not infringing that guaranteed by that Convention
(Charter of Fundamental Rights of the European Union, Art. 49(1))
(see paragraph 24)
Judicial cooperation in criminal matters – Trade and Cooperation Agreement with the United Kingdom – Surrender of convicted or suspected persons to the issuing judicial authorities – Obligation to respect fundamental rights and fundamental legal principles – Refusal to execute an arrest warrant where there is a risk of a breach of Article 49(1) of the Charter of Fundamental Rights – Conditions – Retroactive alteration of the scope of the penalty provided for – Real risk of a heavier penalty than the one that was initially provided for – Imposition of a heavier penalty in the event of a change to the licence regime – Conditions
(Charter of Fundamental Rights of the European Union, Art. 49(1); EU and EAEC-UK Trade and Cooperation Agreement)
(see paragraphs 25-47, operative part)
Résumé
Ruling on a request for a preliminary ruling from the Supreme Court (Ireland), and sitting as the Grand Chamber, the Court, under the accelerated procedure and in the context of an arrest warrant issued on the basis of the Trade and Cooperation Agreement concluded with the United Kingdom of Great Britain and Northern Ireland, (
1
) clarifies the concept of the imposition of a heavier penalty, in the light of the principle that offences and penalties must be defined by law enshrined in the second sentence of Article 49(1) of the Charter of Fundamental Rights of the European Union. (
2
)
The District Judge of the Magistrates’ Courts of Northern Ireland (United Kingdom) issued four arrest warrants against MA for terrorist offences allegedly committed in 2020.
In 2022, the High Court (Ireland) ordered MA to be surrendered to the United Kingdom. MA brought an appeal against that decision before the referring court, which referred a question to the Court of Justice for a preliminary ruling on the interpretation of the TCA, to which the Court responded in Alchaster. (
3
)
In that judgment, the Court stated that, where a person who is the subject of an arrest warrant issued on the basis of the TCA invokes a risk of infringement of Article 49(1) of the Charter in the event of his or her surrender to the United Kingdom, on account of a change to the conditions for release on licence made 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. In the light of that reply, the referring court asked (
4
) the United Kingdom authorities for further information on the legislation which, in the event of surrender, would be applicable to MA in relation to release on licence.
As is apparent from the response of the District Judge of the Magistrates’ Courts of Northern Ireland, according to the legislation applicable in Northern Ireland on the date of the alleged commission of the offences at issue in the main proceedings, a court imposing a determinate prison sentence had to fix a ‘custodial period’ not exceeding one half of the term of the sentence imposed, at the end of which the sentenced person was automatically entitled to be released on licence. However, under the new legislation applicable from 30 April 2021, including offences committed before that date, a determinate prison sentence for a ‘specified terrorism offence’ consists of an ‘appropriate custodial term’, determined by the court, plus a further period of one year, for which the sentenced person is to be subject to licence; the aggregate duration of those periods may not exceed the maximum term of imprisonment provided for. That person may also be eligible for release on licence after having served two thirds of the ‘appropriate custodial term’ and provided that the Parole Commissioners (United Kingdom) consider that his or her continued imprisonment is not necessary for the protection of society.
Having doubts as to whether those amendments may be regarded as relating solely to the execution of sentences or whether they must, on the contrary, be regarded as retroactively altering the actual scope of the penalty provided for and whether, consequently, the view should be taken that a heavier penalty is being imposed on the person concerned than the one applicable on the day the alleged offences were committed, such as to amount to an infringement of Article 49(1) of the Charter, the national court referred a question to the Court of Justice for a preliminary ruling.
Findings of the Court
As a preliminary point, the Court recalls that Article 49 of the Charter contains, at the very least, the same guarantees as those provided for in Article 7 of the Convention for the Protection of Human Rights and Fundamental Freedoms, (
5
) which must be taken into account by virtue Article 52(3) of the Charter as a minimum threshold of protection.
For the purposes of applying Article 7 ECHR, a distinction must be drawn between a measure that constitutes a ‘penalty’ and a measure that concerns the ‘execution’ or ‘enforcement’ of the penalty.
A measure relating to the execution of a sentence will be incompatible with the second sentence of Article 49(1) of the Charter only if it retroactively alters the actual scope of the penalty provided for on the date on which the offence at issue was allegedly committed, thus entailing the imposition of a heavier penalty than the one initially provided for. Although that is not 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.
Therefore, the fact that national legislation provides, in the case of offences committed before its entry into force, for the extension of the part of a prison sentence which must necessarily be served in custody before release on licence may be ordered cannot, taken in isolation, entail an infringement of the second sentence of Article 49(1) of the Charter.
However, the question referred concerns changes to a licence regime, which also call into question a rule under which such release was to take place automatically once half of the sentence was served. Although that change to the licence regime leads in the present case to a hardening of the detention situation, that fact does not necessarily have to be regarded as entailing the imposition of a heavier penalty, within the meaning of the second sentence of Article 49(1) of the Charter.
That finding stems from the separation between the concept of ‘penalty’, understood as the sentence handed down or capable of being handed down, and that of measures relating to the ‘execution’ or ‘enforcement’ of the penalty. It applies not only to the extension of the eligibility threshold for release on licence, but also to changes to other conditions to which the grant of a release on licence is subject.
Thus, in so far as those changes do not, in essence, repeal the possibility of such release and do not lead to an increase in the intrinsic seriousness of the penalty provided for on the date of the alleged commission of the offences at issue, their application to offences committed before their entry into force does not infringe the second sentence of Article 49(1) of the Charter.
As regards the first of those two conditions, it should be noted that the change introduced does not lead in the present case, either in pursuance of the law or in practice, to a repeal, in essence, of the possibility of a release on licence.
As regards the second condition, it does not appear that the change to the licence regime at issue, which does not extend the maximum duration of the prison sentence provided for, has the effect of increasing the intrinsic nature of the penalty initially provided for. The length of the prison sentence to be imposed by the criminal court constitutes, both under the new regime and under the one applicable on the date of the alleged commission of the offences at issue, the maximum period in which the sentenced person could, ultimately, be placed in custody. Both those licence regimes entail the possibility that the person who was eligible for such release may be detained again if his or her conduct justifies revocation of that release. None of those regimes therefore provides that person with a guarantee that he or she will remain free for a predetermined part of the prison sentence imposed by the criminal court.
Furthermore, the criterion based on the dangerousness of the sentenced person, as assessed at the time of the possible release on licence, is a standard criterion in prison policies and involves an assessment of a different nature from that which was initially carried out when the sentence was handed down and is therefore linked to the execution of the penalty.
The Court concludes that, in accordance with the second sentence of Article 49(1) of the Charter, the application, to a person who may be sentenced to a determinate term of imprisonment, of a regime under which that person must serve at least two thirds of a fixed custodial period before being eligible for release on licence, such release is conditional upon a specialised authority finding that the continued imprisonment of that person is no longer necessary for the protection of society and that person is necessarily eligible for release on licence one year before the end of the sentence imposed, does not constitute the imposition of a heavier penalty, when, under the rules applicable on the date of the alleged commission of the offences at issue, he or she should automatically have been eligible for release on licence after having served half of that sentence.
(
i
)	The name of the present case is a fictitious name. It does not correspond to the real name of any of the parties to the proceedings.
(
1
)	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 (OJ 2021 L 149, p. 10; ‘the TCA’).
(
2
)	‘The Charter’.
(
3
)	Judgment of 29 July 2024, Alchaster (C‑202/24, EU:C:2024:649).
(
4
)	Pursuant to Article 613(2) of the TCA.
(
5
)	Convention signed in Rome on 4 November 1950 (‘the ECHR’).