Extradition of European citizens from an EU state other than the state of citizenship to third countries: what obligations for the state of citizenship?
Informal translation of the article of Nicola Canestrini, "Estradizione di cittadini europei da uno Stato UE diverso da quello di cittadinanza a paesi terzi: quali obblighi per lo stato di cittadinanza", cassazione penale 5/2021 (.pdf with footnotes).
Abstract: The Grand Chamber of the Court of Justice of the European Union decision BY - Generalstaatsanwaltschaft Berlin of 17 December 2020 is in continuity with the principles of the so-called Petruhhin doctrine regarding extradition from the EU to third countries, pointing out that there is no EU obligation to request the criminal file of the requesting State and the obligations of the State of nationality once it has been informed of the extradition request by the State from which extradition has been requested.
The judgment of the Grand Chamber of the Court of Justice of the European Union BY - Generalstaatsanwaltschaft Berlin of December 17, 2020 stands in continuity with the principles of the so-called Petruhhin doctrine on the subject of extradition from the EU to third countries, clarifying that EU law does not require that the file concerning the extradite be requested from the requesting state and specifying the obligations of the state of nationality once it has been approached by the state to which extradition has been requested.
1. Introduction - 2. Background: the so-called Petruhhin doctrine and its development in the Pisciotti and Raugevicius cases - 3. The BY ruling - 4. Conclusions
The judgment of the Grand Chamber of the Court of Justice of the European Union concerning the reference for a preliminary ruling submitted by the Kammergericht Berlin BY - Generalstaatsanwaltschaft Berlin on December 17, 2020 adds another piece to the complex mosaic of principles applicable when an EU member state has to decide on the extradition of a citizen of another EU member state to third countries.
The topic is once again the balance between the risk of impunity in extradition proceedings to countries outside the EU and the protection of the fundamental rights of EU citizens, again with the focus on the possible discrimination by nationality of EU citizens who find themselves exercising their right to free movement in a member state other than that of their nationality and there they are reached by an extradition request to a non-EU country .
The relevant principles enunciated by the Court of Justice will then be analyzed, focusing then on the novelties contained in the ruling under review.
2. The so-called Petruhhin doctrine and its development in the Pisciotti and Raugevicius cases
In the Petruhhin judgment, the Grand Chamber of the Court of Justice, called upon to rule on a request for a preliminary ruling submitted by the Supreme Court of Latvia in a case involving the extradition of an EU citizen to a third state under a bilateral extradition agreement concluded between Latvia and Russia, ruled that under Articles. 18 and 21 TFEU for a member state of the Union other than that of the extraditee's nationality there is an obligation to inform and - where appropriate - to surrender to the member state of nationality provided that said member state has jurisdiction under its national law to prosecute that person for acts committed outside its national territory, having to verify in each case that extradition would not prejudice the rights set forth in Article 19 of the Charter of Fundamental Rights of the European Union, i.e., extradition would still be prohibited when there is a "serious risk" of the death penalty, torture or other inhuman or degrading treatment or punishment.
The groundbreaking as much as opposed ruling relies on Article 18 TFEU, which, by prohibiting "any discrimination made on the basis of nationality," requires equal treatment of persons in a situation falling within the scope of the treaties .
Therefore, extradition proceedings - which are within the competence of member states - may also fall within the scope of the EU treaties when a third country issues an extradition request against a citizen of the Union but not of the requested state, since the extradite who is also a citizen of the Union is exercising a fundamental freedom under the treaties, namely his right to freedom of movement and which makes him subject to Union law and requires the requested state to comply with the rules and principles of EU law.
By thus prohibiting "any discrimination made on the basis of nationality," Article 18 TFEU thus requires equal treatment of persons in a situation falling within the scope of the treaties : any restriction on freedom of movement provided for in Article l Article 21 TFEU can thus be justified only if it is based on objective considerations and if it is proportionate to the objective legitimately pursued by the national legislation .
As to the need to avoid risk of impunity, it is true that Article 3(2) TEU offers citizens of the Union an area of freedom, security and justice without internal borders, in which the free movement of persons is ensured together with appropriate measures with respect to external border controls and the prevention and combating of crime: moreover, the Court observes, measures restrictive of a fundamental freedom, such as that in Article 21 TFEU, can be justified by objective considerations only where they are necessary for the protection of the interests they are intended to secure and only insofar as those objectives cannot be achieved by less restrictive measures.
The Court thus recalls that, by virtue of the principle of loyal cooperation enshrined in the first subparagraph of Article 4(3) TEU, the Union and the Member States respect and assist each other in the performance of their tasks under the Treaties: in the absence of Union law rules governing extradition between the Member States and a third state , in order to protect citizens of the Union against measures that could deprive them of the rights of free movement and residence provided for in Article 21 TFEU, while fighting against impunity for crimes, it is according to the Petruhhin doctrine necessary to implement all existing mechanisms of cooperation and mutual assistance in criminal matters under Union law.
Therefore, priority should be given to the exchange of information with the member state of which the extradite has citizenship in order to provide the authorities of that member state, provided they have jurisdiction under their national law to prosecute that person for acts committed outside the national territory, with the opportunity to issue a European arrest warrant for the purpose of prosecution: only by "cooperating in this way with the Member State of which the person concerned has the nationality and giving priority to said possible arrest warrant over the extradition request, does the host Member State act in a manner less detrimental to the exercise of the right of free movement, while at the same time avoiding, as far as possible, the risk of the prosecuted crime going unpunished" .
In fact, (procedural) extradition is a procedure that aims to fight against the impunity of a person who is in a territory other than the one in which he allegedly committed a crime: the Court specifies that "taking into account the brocardo aut dedere, aut judicare, the non-extradition of nationals is generally compensated for by the possibility for the requested Member State to prosecute its own nationals for serious crimes committed outside its territory, that Member State is generally incompetent to try such facts when neither the perpetrator nor the victim of the alleged crime are nationals of that Member State. Extradition thus makes it possible to prevent crimes committed in the territory of a state by persons who have fled from that territory from going unpunished." .
Therefore, the Court concludes that Articles 18 and 21 TFEU must be interpreted to mean that, when a Member State to which a citizen of the Union having the nationality of another Member State has gone is presented with a request for extradition by a third State with which the first Member State has concluded an extradition agreement, it is obliged to inform the Member State of which the said citizen is a national and, where appropriate, at the request of the latter Member State, to surrender that citizen to it, in accordance with the provisions of Framework Decision 2002/584, provided that said Member State has jurisdiction under its national law to prosecute that person for acts committed outside its national territory.
Next, and addressing the situation in which there is a Union extradition agreement with a third state, the Court reiterated that of the "national rules of a Member State on extradition, which introduce a difference in treatment depending on whether the person concerned is a national of that Member State or a national of another Member State , insofar as they lead to not granting nationals of other Member States who have travelled to the territory of the requested State the protection enjoyed by nationals of the latter Member State, are likely to affect the freedom of the former to move within the Union" and therefore "the difference in treatment consisting in allowing the extradition of a citizen of the Union, having the nationality of a Member State other than the requested Member State, such as Mr. Pisciotti, results in a restriction of freedom of movement, within the meaning of Article 21 TFEU" .
The Petruhhin doctrine with the Piscotti judgment cited above is then subsequently extended to cases in which a citizen of the Union who is the subject of an extradition request under an agreement on extradition between the European Union and the third state has been arrested in a member state other than the one of whose nationality he or she is a national, for the purpose of the possible execution of such a request, stating that Articles 18 TFEU and 21 TFEU must be interpreted to mean that they do not preclude the requested member state from making a distinction on the basis of a rule of constitutional law, between its own nationals and the nationals of other Member States, and authorizing such extradition while not allowing that of its own nationals, once it has first enabled the competent authorities of the Member State, of which that person is a national, to request his or her surrender under a European arrest warrant and the latter Member State has taken no steps to that effect .
Having specified this for the so-called extraconventional procedural extraditions (Petruhhin) and conventional extraditions (Pisciotti), in the Raugevicius judgment the Court specifies that in cases of so-called extradition. executive, Articles 18 and 21 TFEU must be interpreted to mean that, in the presence of a request, submitted by a third country, for the extradition of a citizen of the Union who has exercised his or her right to freedom of movement, the purpose of which is not the prosecution, but the execution of a custodial sentence, the requested Member State whose national law prohibits the extradition of its nationals outside the Union for the purpose of the execution of a sentence and provides for the possibility that such a sentence imposed abroad may be served in its territory, is obliged to guarantee to such a citizen of the Union, provided that he or she is permanently resident in its territory, treatment identical to that accorded to its own nationals in matters of extradition.
The Petruhhin doctrine, as specified in subsequent judgments, thus enhances the single area of security, freedom and justice , which, as stated in the TEU's recitals, aims to "facilitate the free movement of persons, while ensuring the security of their peoples, by establishing an area of freedom̀, security and justice, in accordancè with the provisions of this Treaty and the Treaty on the Functioning of the European Union."
Area of security, freedom and justice, which, in order to be fully developed, cannot fail to guarantee the European citizen an adequate level of protection against disproportionate restrictions on fundamental freedoms, among which is to be included that of freedom of movement in Article 21 TFEU.
The Court of Justice has thus ruled that national extradition rules, where they introduce a difference in treatment depending on whether the person concerned is a national of the requested Member State or a national of another Member State, may affect the freedom of European citizens to move within the Union where they do not provide that nationals of other Member States are not afforded the protection against extradition enjoyed by nationals .
The ultimate rationale of the aforementioned Petruhhin (2016) and Pisciotti (2018) judgments is to be found (also but) not only in the need to avoid discriminatory treatment between national and EU nationals in the case of an extradition request from a third country to a member country of the Union, but also in the impossibility of a national regulation resulting in an unjustified compression of the fundamental freedoms under the European Union treaties.
3. The BY judgment
3.1. The facts of the case
In the proceedings that led to the judgment under comment, BY, a Ukrainian citizen who had settled in Germany in order to also obtain Romanian citizenship at a later date, was arrested in 2016 on the basis of an arrest warrant issued by a Ukrainian judge with a subsequent extradition request; in application of the Petruhhin doctrine, the German AG through diplomatic channels informed the Ministry of Justice of the Romanian state of citizenship of the extradition request with a request whether the same intended to prosecute BY in his capacity as a Romanian citizen who had committed acts that were criminally punishable abroad. The Romanian government responded that the Romanian authorities could decide to prosecute only at the request of the Ukrainian authorities or upon the issuance of a national arrest warrant, as a condition for the issuance of a European arrest warrant, of course subject to sufficient evidence of the extradite's guilt, thus requiring the German judicial authority to forward documents and copies of evidence relating to the facts alleged against BY.
3.2 In law: what obligations of the extradite's state of nationality?
After noting how it is irrelevant whether a citizen of the Union has dual citizenship or acquired the citizenship of a member state and, therefore, the status of citizen of the Union only when he was already residing in a member state other than the one whose citizenship he subsequently acquired, the Court of Justice pointed out that BY, a Romanian national, exercised, in his capacity as a citizen of the Union, his right, provided for in Article 21 TFEU, to reside in another Member State, in this case the Federal Republic of Germany, so that his situation fell within the scope of the Treaties, within the meaning of Article 18 TFEU.
Thus, the Luxembourg court recalls, once again in its most authoritative composition, that the national rules of a member state on extradition which introduce a difference in treatment depending on whether the person complained of is a national of that member state or is a national of another member state, insofar as they lead to the failure to grant nationals of other member states lawfully residing in the territory of the requested state the protection against extradition enjoyed by nationals of the latter member state, are likely to affect the freedom of the former to move and reside in the territory of the member states; the restriction on the fundamental freedom provided for in Art. 21 TFEU such can be justified only if it is based on objective considerations and if it is proportionate to the objective legitimately pursued by the national legislation.
Addressing the novum of the question, the Court then rephrases the question for a preliminary ruling as to whether Articles 18 and 21 TFEU must be interpreted to mean that, where the Member State of nationality of the extradite who is a citizen of the Union subject to an extradition request made by a third state to another Member State has been informed in accordance with the Petruhhin doctrine of the existence of the extradition request , one or other of those Member States is obliged to request the requesting third State to forward to them a copy of the criminal file in order to enable the Member State of the said person's nationality to assess the possibility of prosecuting him or her itself.
However, the Court holds that "neither the requested Member State nor the Member State of which the person complained of has nationality can instead be required under Union law to request the transmission of the criminal file by the requesting third State." , and this is not only because there would be no normative basis in Union law, but more importantly because it would also be irreconcilable with the objectives on which the exchange of information under the Petruhhin Principles is based. Such an exchange of information is, as noted above, part of the objective of preserving citizens of the Union from measures likely to deprive them of the rights of free movement and residence provided for in Article 21 TFEU, while combating impunity. And if the requested Member State or the Member State of which the person complained of has the nationality were required under EU law to request the transmission, by the requesting third state, of the criminal file, the extradition procedure could be considerably more complex and its duration could be substantially prolonged, which could ultimately undermine the objective of avoiding such impunity.
It follows, therefore, that, provided that the authorities of the member state of which the extraditee has the nationality have been duly informed, the authorities of the requested member state may continue the extradition procedure and, where appropriate, extradite that person in the absence of the issuance of a European arrest warrant by the member state of which he or she has the nationality within a "reasonable time, taking into account all the circumstances of the case." the requested member state may then proceed with extradition without being obliged to wait, beyond such a reasonable period, for the member state of nationality of the extraditee to take a formal decision renouncing the issuance of a European arrest warrant against that person.
The contrary approach would, in fact, go beyond what is implied by the implementation of existing mechanisms for cooperation and mutual assistance in criminal matters under Union law and would risk unduly delaying the extradition procedure .
According to the court, Articles 18 and 21 TFEU must therefore be interpreted to mean that, where the Member State of whose nationality the extraditee - a citizen of the Union who is the subject of an extradition request submitted by a third State to another Member State - has been informed by the latter State of the existence of such a request neither of those Member States shall be obliged to request the requesting third State to forward a copy of the criminal file in order to enable the Member State of which the said person is a national to consider prosecuting that person itself. Provided that it has duly informed the Member State of which the same person has the nationality of the existence of the extradition request, of all legal and factual elements communicated by the requesting third State within the framework of such request, as well as of any change in the situation in which the person claimed is found, relevant to the possible issuance of a European arrest warrant against him or her, the requested Member State may extradite said person without being obliged to wait until the Member State of which he or she is a national waives, by a formal decision, the issuance of the said arrest warrant, concerning at least the same facts mentioned in the extradition request, if the latter Member State refrains from proceeding with the said issuance within a reasonable time limit granted to it for that purpose by the requested Member State, taking into account all the circumstances of the case.
With the BY judgment, the Court affixes a further - but certainly not the last - piece to the mosaic concerning the regulation of extradition to third countries of citizens of the European Union who have made use of their freedom of movement on the territory of the Union, not going so far as to interpret Articles 18 and 21 TFEU as obliging the requested state that is not the extradite's state of nationality to itself prosecute him or her for acts committed in a third state, if the national law of the requested member state authorizes the latter to prosecute the Union extradite for certain offenses committed in a third state , nor by addressing the (potentially disruptive) issue of the relevance of the extradite's possible national privilege, i.e., the effect of his right not to be extradited as provided for by the state of nationality not only in his home country but throughout the entire territory of the Union.
According to the BY ruling under comment, Union law would in fact only address the question of whether the requested Member State may act, with respect to the extradite who is a Union citizen in a manner less detrimental to the exercise of his or her right to freedom of movement and residence, by contemplating surrendering that citizen to the Member State of which he or she is a national for the sole case of a request for surrender in an EAW proceeding instead of extraditing him or her to the requesting third state.