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Extradition: Parole change not ‘heavier penalty’

An adviser to the Court of Justice of the European Union (CJEU) has found that changes in parole rules do not fall under the concept of a ‘heavier penalty’ under the EU’s Charter of Fundamental Rights.

Advocate General Dean Spielmann was giving his view on a question referred to the court by the Supreme Court concerning an extradition case.

The case involves a man alleged to have committed a series of offences under British law, and whether he can be extradited under the relevant provisions of the Trade and Cooperation Agreement (TCA) between the EU and Britain.

He has claimed that his surrender would be incompatible with the principle that offences and penalties must be defined by law, because of an unfavourable change to the rules on release on licence adopted by Britain after the suspected commission of the offences in question.

Automatic release

In an earlier opinion on the same case, the CJEU held that a court could refuse to carry out an arrest warrant only if it had “clear and updated proof” that the person might face a heavier penalty than what was originally set when the crime was committed.

The Supreme Court subsequently asked if the concept of a ‘heavier penalty’ included a change in the rules governing the parole system.

In his opinion, the advocate general stated that the concept of a ‘heavier penalty’ under the charter did not include changes in parole rules where automatic release after serving half a sentence was replaced with conditional release after serving at least two-thirds, subject to an assessment conducted by Parole Commissioners.

‘Execution’ of a penalty

He said that the case revolved around the difference between the imposition and the execution of a penalty, noting that the distinction between the two, while straightforward in theory, was sometimes difficult to draw in practice.

AG Spielmann stressed that, according to the traditional and consistent case law of the European Court of Human Rights, the UN Human Rights Committee, and most national legal orders, the principle of non-retroactivity applied to penalties only, and not to their execution.

He concluded that changes in the British parole system did not affect the intrinsic nature of the sentence initially provided for.

The advocate general’s opinion is not binding on the court, and the judges will give their ruling at a later date.