The CJEU established, in its Petruhhin judgment, on September 6, 2016, specific provisions for Member States that do not permit the extradition of their own nationals, in the event that they receive an extradition request pertaining to an EU citizen who is a national of another Member State. The subsequent case law confirmed this new approach and even refined it somewhat.
As a result, this case law has proven challenging to put into practice. Many questions of a legal and practical nature have persisted despite the many discussions and meetings devoted to Petruhhin, Raugevicius, and the other related judgments. Legal luminaries like Advocate General Hogan, in his opinion for the CJEU in the pending case Generalstaatsanwaltschaft Berlin (Extradition towards Ukraine), acknowledge the existence of these concerns.
The Council requested an investigation into the practice of granting extradition requests from third countries to EU citizens on June 4, 2020. The results of this investigation were due to the Council on December 1, 2020. The Commission planned to use the report’s findings to investigate potential next steps toward a unified EU policy regarding the processing of extradition requests from non-EU countries on behalf of EU citizens.
Background of the Doctrine
In the Petruhhin case, the Supreme Court of Latvia sought a preliminary ruling on a request for extradition for prosecution from Russia to Latvia (the requested Member State) in connection with an Estonian citizen. When it comes to carrying out an extradition order, the CJEU was tasked with interpreting Articles 18 and 21(1) of the Treaty on the Functioning of the European Union (TFEU) and Article19 of the Charter of Fundamental Rights of the European Union (the Charter). The CJEU established a requirement for a consultation procedure to be carried out between the requested Member State and the EU citizen’s Member State of nationality, as well as answered questions about a human rights assessment.
According to the CJEU, a restriction of freedom of movement in violation of Article 21 of the TFEU occurs when a Member State’s nationals are exempt from extradition while EU citizens who are nationals of another Member State are not. If the restriction is reasonable and serves a valid purpose, then it is acceptable. The Court of Justice of the European Union ruled that it is a legitimate goal of EU law to reduce the possibility that criminals will go unpunished. The CJEU did find that extradition was not the most proportional way to achieve this goal and ruled that all the cooperation and mutual assistance mechanisms in EU criminal law should be used. This meant that the requesting Member State had to notify the national Member State of the extradition request, allow the national Member State to issue a European Arrest Warrant (EAW) if it has jurisdiction, and prioritize the EAW over the extradition request.
When a Member State receives an extradition request from a third country, that Member State must check that the extradition will not violate the rights mentioned in Article 19 of the Charter, as determined by the Court of Justice of the European Union (CJEU). The CJEU reminded Member States that they must base their evaluations on information that is objective, reliable, specific, and up-to-date in accordance with the Aranyosi and Căldăraru judgment.
Variations to the Doctrine
In later decisions like Pisciotti (C-191/16,ECLI:EU:C:2018:222) and Ruska Federacija (C-897/19 PPU, ECLI:EU:C:2020:262) and case Generalstaatsanwaltschaft Berlin, the CJEU affirmed and refined the Petruhhin judgment.
In Raugevicius, the CJEU followed Petruhhin to an extent, but reached a different conclusion; both cases involved requests for the extradition of EU citizens for the purpose of carrying out a custodial sentence. That the principle of “ne bis in idem” (double jeopardy) may be an impediment to the prosecution of persons covered by an extradition request by a Member State for the purpose of enforcing a sentence was recognized in this case. The CJEU, however, ruled that other mechanisms exist under national and/or international law that allows such individuals to serve their sentences, particularly in the Member State of which they are nationals, with the goal of improving their prospects for social rehabilitation.
Since the applicant, in this case, had been a permanent resident of the member state in question for some time, the CJEU decided not to apply the reasoning it had previously employed in PetruhhinorPisciotti (consultation mechanism with the Member State of nationality). Instead, the CJEU decided that a requested state must guarantee EU citizens who have established permanent residence in its territory the same extradition protections as its own citizens. To rephrase, the requesting Member State should look into the possibility of having the convicted offender serve his or her sentence on its soil.
The much-awaited case of Generalstaatsanwaltschaft Berlin (Case C-398/19) created more clarity on the doctrine. The Court of Justice of the European Union (CJEU) issued its decision in the extradition case of a Ukrainian-Romanian national (Case C-398/19) on December 17, 2020. (BY – Generalstaatsanwaltschaft Berlin). The person in question had relocated to Germany in 2012, and the Ukrainian government requested their extradition. The CJEU was able to use this case to clarify the precedent set in the Petruhhin judgment.
The defendant (BY) in this case was not a Romanian resident, and the Romanian Ministry of Justice did not provide a clear answer to the Berlin General Prosecutor’s Office’s inquiry as to whether Romania intended to take over the criminal prosecution of the person in question. It’s unclear what, if any, conclusions the referring court should draw from the Petruhhin decision. It asked the Court to interpret Articles 18 and 21 of the Treaty on the Functioning of the European Union (regarding, respectively, the principle of nondiscrimination on grounds of nationality and the right of Union citizens to move and reside freely within the territory of the Member States) and to rule on the obligations of Germany, as the requested State, in relation to the extradition of the Union citizen.
First, the CJEU confirmed in Grand Chamber that Articles 18 and 21 TFEU apply in situations like this one. Only the fact that a citizen of one EU Member State is currently located within the territory of another EU Member State and that the second EU Member State has received an extradition request from a third State is relevant. Since BY’s interests were already focused on another Member State (Germany) before he became a citizen of the Union, the fact that he later acquired citizenship has no bearing on the matter.
Second, the CJEU provided guidance on the responsibilities of the EU Member State that is being asked to provide information during the consultation procedure outlined in Petruhhin. The individual’s home Member State (in this case, Romania) must be able to issue a European Arrest Warrant (EAW) for his or her surrender. So, what does this imply?
All elements of fact and law communicated by the third State in the context of the extradition request, and any changes to the situation of the requested person that might be relevant to the possibility of issuing an EAW, must be communicated to the Member State of nationality in a timely manner;
According to EU law, neither of the EU Member States involved (in this case, Germany and Romania) need to request that the requesting third state (in this case, Ukraine) send them a copy of the criminal investigation file;
A reasonable deadline (considering all circumstances of the case, in particular the extradition detention of the person and the complexity of the case) must be imposed by the requesting Member State upon the Member State of nationality. If the national Member State does not issue an EAW within the allotted time, the requesting EU Member State can move forward with the extradition process and, if necessary, carry it out.
Finally, the CJEU ruled that Articles 18 and 21 TFEU must be interpreted to mean that a Member State that receives an extradition request from a third State for the purpose of criminal prosecution of a Union citizen who is a national of another Member State is not required to refuse extradition and to conduct a criminal prosecution itself where its national law permits it. Any other requirement would go against EU law and restrict the requested EU Member State’s ability to decide for itself whether or not to pursue prosecution.
Application of the Doctrine
It has been determined through analysis that practitioners frequently use the consultation procedure without first ensuring the presence of the various elements that, in theory, must be present for the application of this mechanism. Particularly in light of the Petruhhin and Raugevicius judgments, questions have arisen about the applicability of the CJEU’s legal reasoning to extradition requests for the execution of a custodial sentence and the appropriate approach in such cases. In actual situations, it is not always obvious to practitioners which obligations should be applied.
These elements include:
The legitimacy of the extradition request.
If the requested person made use of the right of EU citizens to free movement.
The “nationality exception” asks whether the requested EU Member State will not extradite its own nationals if the person in question has exercised their right to free movement within the EU.
If the defendant initially said they wanted to be extradited right away, but then changed their mind at the extradition hearing and said they did not want to be taken in.
In accordance with the free movement agreements they have signed with the EU, which also include the rule of non-discrimination, EFTA states should not be treated as ordinary third countries in Petruhhin-related situations.
Reasons for wanting to extradite them (criminal prosecution or serving a prison sentence) and whether or not they have been long-term residents in the country in question are both important considerations.
The consultation procedure involves the following steps:
Initiation of the consultation procedure
Competent authorities in the Member State of nationality use appropriate channels to inform the other state.
Translation of the information exchanged (where necessary).
The Member State of nationality replies within the deadline period
An assessment carried out by the Member State of nationality
The decision by the Member State of nationality is reached and duly communicated
The extradition proceedings are then initiated.
Problems Associated with Applying the Doctrine
While the doctrine is a step in the right direction, there are numerous problems that have been identified and deter member states from considering and/or attempting to implement the doctrine:
Uncertainty as to which authority in the Member State of nationality should be contacted, which Member State should handle and bear the costs of translation, and/or which judicial cooperation instrument should be applied to best ensure prosecution in the Member State of nationality.
There were varying policies regarding the depth of information shared, the length of time allowed for responses and final decisions, and the various forms of evaluation that were conducted.
Disagreements between bilateral and multilateral extradition treaties and EU law obligations.
Multiple channels are used to disseminate information, which can cause inefficiency, ambiguity, and chaos.
Extradition requests for prosecution versus extradition requests for execution of a custodial sentence
Several uncertainties persist concerning the breadth of the CJEU’s precedent. The CJEU has made it clear that a Member State seeking extradition for prosecution must first make contact with the nationality of Member State (consultation mechanism). The CJEU has also made it clear that a Member State must consider the possibility of an extradited individual serving their sentence on its territory if the sentence involves incarceration and the individual has been a long-term resident of the requested state. Extradition for the purpose of carrying out a custodial sentence raises questions about the responsibilities of the requested Member State when the person being extradited is not a long-term resident of that state. When this happens, should it notify the nationality’s home country (consultation mechanism) and look into using certain “cooperation and mutual assistance mechanisms” (such as the nationality’s home country taking over the sentence)? Many questions about the mechanics of this plan arise if the answer is yes.
The CJEU’s case law on extradition of EU citizens to third countries has clearly only resulted in a handful of instances where the requested Member State gave priority to a prosecution in the Member State of nationality. Practitioners often view the consultation process as a bureaucratic formality that, at best, merely delays the extradition process and, at worst, can be expensive and time-consuming, depending on how it is applied in a given case.
Further investigation, however, reveals that such a mechanism can be useful in cases where parallel criminal proceedings are ongoing in the Member State of nationality for the offence mentioned in the extradition request. It provides the home country with notice of the extradition request and the opportunity to take steps to protect its own criminal proceedings from its execution. For instance, it is not always possible for the nationality Member State to issue an EAW if parallel proceedings are taking place in that country. As a result, it is unclear whether the Member State of nationality’s exercise of jurisdiction would be effective or preferable in situations where no parallel proceedings are underway, where information is scarce, and where the third country is unwilling to cooperate.
According to the CJEU’s case law, a number of criteria must be met before the consultation procedure can be initiated. However, it is unclear if these conditions are always verified (the conditions are not systematically checked, and the consultation mechanism may be used in ways that go beyond the case law).
Practitioners may benefit from the additional explanations of some key issues like the Generalstaatsanwaltschaft Berlin. This elucidation could come from the case law of the CJEU, guidelines established by the Commission, or some other method deemed to be appropriate. The research indicates that clarification does not require taking the same stance on every issue. In fact, experience has shown that adaptability is essential for the procedure’s success due to differences in national legal systems (including on extradition), the unique facts of each case, and the various international instruments that may be relevant to that case.
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