About this case:

• Citation:
  Case C‑743/24
• Judgment:
  External link
• Court:
  CJEU

Delivering judgment on 3 April 2025, the court confirmed that “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”.

Background

On 26 November 2021, a district judge in Northern Ireland issued four arrest warrants against MA for terrorist offences allegedly committed by him in July 2020 in Northern Ireland. 

In late 2022, the Irish High Court ordered MA to be surrendered to the UK and refused to grant him leave to appeal to the Court of Appeal. On 17 January 2023, the Supreme Court granted MA leave to appeal against the judgment and orders of the High Court.

MA submitted that his surrender would be incompatible with the principle that offences and penalties must be defined by law on grounds that in the event of receiving a prison sentence, contending that his possible release on licence would be governed by UK legislation adopted after the commission of his alleged offences and which is more severe than the legislation applicable at the time of the offences.

Having rejected MA’s argument alleging a risk of infringement of Article 7 of the European Convention on Human Rights (ECHR), the Supreme Court considered that there was uncertainty as to the need to examine, in addition, whether there was a risk of an infringement of Article 49(1) of the Charter of Fundamental Rights of the European Union and the rules governing such an examination. 

On 7 March 2024, the Supreme Court stayed the proceedings and referred a question to the Court of Justice of the European Union (CJEU) for a preliminary ruling on the interpretation of the Trade and Cooperation Agreement (TCA) governing MA’s surrender.

On 29 July 2024, the CJEU held in Alchaster (C‑202/24, EU:C:2024:649) that an executing judicial authority of a member state must examine whether the surrender of a person to the UK pursuant to an arrest warrant is liable to infringe their rights under Article 49(1) of the Charter which prohibits the retroactive imposition of a heavier penalty. The judicial authority may then refuse to execute the warrant only if, having requested additional information and guarantees, it has information proving that the person could be sentenced to a heavier penalty than that initially provided for on the date of the alleged commission of the offence.

The Supreme Court duly requested further information from the UK pursuant to Article 613(2) TCA on the UK legislation that would be applicable to MA if he were convicted of one or more of the offences for which he was being prosecuted.

Having received an answer from the district judge in September 2024, the Supreme Court found that there was a real possibility of MA being sentenced to a determinate term of prison in the event of his surrender and that changes to the licence regime meant that persons sentenced to such a penalty would remain in custody for a longer period (for two-thirds of their sentence as opposed to one half of their sentence before their release on licence).

The Supreme Court referred a second question to the CJEU, asking whether those changes could be regarded as relating solely to the execution of the penalties or whether they must be regarded a retroactively altering the actual scope of the penalty to be incurred by MA in the event of his surrender such as to amount to a breach of Article 49 of the Charter.

The CJEU

The CJEU set out Article 49(1) of the Charter, which provides that no heavier penalty is to be imposed than that applicable at the time the criminal offence was committed. 

Highlighting that the distinction between a measure constituting a penalty and a measure concerning the execution of a penalty is “not always clear-cut in practice”, the court explained that “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”.

The court continued: “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…”

Noting that the changes to a licence regime in question went beyond merely extending the eligibility threshold for release, the court considered that the changes which inter alia require a detainee to serve at least two-thirds of their sentence before being eligible for release on licence, with a condition that a specialised authority considers that their continued imprisonment is no longer necessary for the protection of society, constituted a hardening of the detention situation but did not necessarily constitute the imposition of a heavier penalty.

The court explained that this finding stemmed from the differences between the concept of a “penalty”, being the sentence handed down or capable of being handed down, and that of measures relating to the “execution” or “enforcement” thereof.

The court was satisfied that in so far as the changes did not repeal the possibility of release on licence and did not increase the intrinsic seriousness of a penalty as provided for on the date of the alleged commission of an offence, the application of the changes to offences committed prior to their entry into force does not infringe the Charter.

The CJEU also found that the changes in question preserved the possibility of release on licence and that in any event, release on licence would still occur automatically one year prior to the end of the sentence imposed.

Furthermore, the court recognised that the changes did not extend the maximum duration of the applicable determinate prison sentence and was satisfied that the criterion relating to the assessment of the dangerousness of the sentenced person involved an assessment different to that initially carried out when the sentence was handed down and as such, is linked to the execution of the penalty.

Conclusion

Accordingly, the CJEU answered:

Alchaster II, Case C‑743/24, EU:C:2025:230