As a result of the withdrawal of the United Kingdom from the European Union, the United Kingdom became a ‘third country’, also in the field of judicial cooperation in criminal matters. The European Union and the United Kingdom concluded the Trade and Cooperation Agreement (TCA) on 30 December, 2020. This is an international treaty concluded by the EU, which is part of EU-law. This international treaty has direct effect in Hungary, and – as a part of EU law – shall be applied as national law. The Constitutional Court has established during its relevant practice, that EU law as national law does not fit into the hierarchy of national sources of law, but shall be applied as a sum of statutes based upon the constitutional order contained by the Fundamental Law of Hungary [2/2019. (III. 5.) AB decision, Reasoning Section 20].
The text of the TCA in Hungarian language can be found in the Official Journal of the European Union. The TCA has been provisionally applied (see FINPROV Article 11) since 1 January, 2021.
Accordingly:
· Since 1 January, 2021 the regulations of the TCA shall be applied between the Member States of the European Union and the United Kingdom in place of the former EU legal framework and procedures. Pursuant to Articles 1 and 3 of Act Nr. XXXVIII of 1996 on international legal assistance in criminal matters, the regulations of this Act shall be applied in addition to the TCA in criminal cases initiated after 1 January, 2021 in areas where the TCA does not contain any regulations.
· For decisions made until 31 December, 2020 the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community (EU-UK Withdrawal Agreement) contains the applicable rules. The Withdrawal Agreement is also an international treaty, having direct effect, and it orders the application of the EU regulations that were in effect with respect to the United Kingdom until 31 December, 2020 (see Title V). For decisions made until 31 December, 2020, these regulations shall be further applied.
Rules of cooperation after 1 Januar, 2021
The TCA governs the cooperation between the Member States of the European Union and the United Kingdom in several fields, and it also contains regulations concerning cooperation in criminal matters; Part III is dealing with police (law enforcement) and judicial cooperation in criminal matters.
The TCA establishes a new framework for police and judicial cooperation in civil and criminal matters, taking into consideration, that the United Kingdom as non-member of the Schengen Area and the European Uninon will not access to the same tools, but the need for close cooperation between the national police and judicial authorities still stands.
The framework for the surrender of persons wanted for criminal proceedings or the execution of an impironment sentence is based upon the rules of the European arrest warrant, establishing a similar system.
In case of European arrest warrants issued before 1 January, 2021, if the requested person has been arrested 1 January, 2021, the surrender proceedings shall be conducted pursuant to the EU Framework decision on the European arrest warrant. If the arrest took place later, the proceedings shall be conducted pursuant to the relevant regulations of the TCA. There is no need to issue an arrest warrant using the new template instead of European arrest warrants issued before 1 January, 2021, even if the arrest of the requested person has not taken place before 1 January, 2021.
The European Convention on mutual legal assistance and its additional protocol will remain in force, the regulations of the TCA will supplement and facilitate the application of those. There are no designated central authorities for mutual legal assistance matters in Hungary as main rule, so Hungarian court and prosecutor's office keep direct contact with the competent UK authorities. Exceptions are requests for freezing and confiscation, in case of which the designated central authorities of Hungary are the General Prosecutor's Office and the Ministry of Justice, respectively.
The European Convention on the transfer of sentenced persons, concluded in Strasbourg on 21 March, 1983 shall be applied for the transfer of sentenced persons from 1 January, 2021.
With respect to the United Kingdom, the following downloadable forms of arrest warrant, request for freezingrequest for confiscation shall be applied, as contained in the annex of the TCA.