Extradition to non-EU countries – further developments in EU case law

Professor Steve Peers,
University of Essex*

Today’s ECJ judgment in Pisciotti
on the extradition of citizens of a different Member State to a non-EU country
(in this case, the USA) adds to its case law in this area – and has some
interesting implications for Brexit. The new ruling builds on the September
2016 Petruhhin
judgment on extradition of the citizens of another Member State to Russia,
which I discussed in detail here.

The case concerns an Italian citizen
extradited to the USA after being arrested while in transit in Germany. Having
pled guilty and served his sentence in the USA, he returned and sued for
damages, arguing that Germany should have treated him the same as German citizens,
who cannot be extradited outside of the EU.

As in its previous judgment, the
ECJ ruled that extradition of the citizen of a different Member State to a
non-EU country in principle falls within the scope of EU law, since it
interferes with free movement rights. In this case, the existence of an EU/US
extradition treaty
also brought
the case within the scope of EU law, but the free movement point is more
significant, since it brings non-EU extradition cases within the scope of free movement
law whether the EU has an extradition treaty with the relevant non-EU country
or not.

Moreover, the Court adopted a
broad interpretation of free movement for this purpose, confirming that Mr
Pisciotti could rely on his free movement rights even where he was only briefly
in transit through another Member State. In fact, in its intervening 2017
ruling in Schotthöfer,
it had accepted that even cancelling a presentation in another Member State due
to fear of facing extradition from that State to a non-EU country was sufficient
to trigger the application of free movement law.  On that basis, any EU citizen who wants to
challenge an extradition request from a non-EU country by relying on EU free movement
law in principle could arguably bring the issue within the scope of free
movement law by buying a ticket for a cheap flight (or other transport) to
another Member State and then cancelling it, claiming fear of extradition.

Of course, it does not follow
that such a challenge will succeed on the merits. After noting that the EU/US
extradition treaty left it open to Member States to refuse to extradite their own
citizens, the Court pointed out that extradition of citizens of other Member
States has to comply with EU law, whether issues arose under an extradition treaty
with the EU, with the Member State concerned, or pursuant to national constitutions.
Next, the Court confirmed its prior ruling that while in principle citizens of another
Member State must be treated the same as nationals of the State they are in,
this does not extend to absolute equal treatment as regards refusal to
extradite that State’s own citizens (a rule which many States apply to their
own citizens, except within the European Union). That’s because it’s justified
to derogate from the equality rule on the grounds of avoiding impunity for prosecution
for criminal offences. (Note that while the latest case, and the first case, decided
by the ECJ concern pending prosecutions, the intervening Schotthöfer case concerned a sentence
for a criminal offence. The Court did not discuss the possibility of transferring
that sentence).

This derogation is subject to the
principle of proportionality. Again applying that rule, the Court ruled that this
means that the Member State which the fugitive is a citizen of must also be
contacted and be given the option to prosecute. The Court rejected objections of
Member States to the Petruhhin ruling
on this front, restating the priority given to prosecution by the EU citizen’s
Member State of nationality – if that
State has jurisdiction to prosecute. (The position of dual citizens of two
Member States – or of a Member State and a non-EU country – hasn’t been
addressed yet). Presumably where a sentence has already been handed down, the
Member State of nationality should be given, by analogy, the opportunity to
transfer the sentence under the relevant international treaty (assuming that
the Court did not intend Schotthöfer to
rule out sentence transfers entirely).

Impact on Brexit

After Brexit day, there are two periods
to consider as regards extradition between the UK and the EU. First of all, the
European Arrest Warrant law will apply during the transition period, but the EU27
position is that some Member States want to refuse extradition of their own
citizens for constitutional reasons (see Article 168 of the latest
of the withdrawal agreement, which is not yet fully agreed). It might
be arguable whether this line of case law on extradition to non-EU countries
also applies; perhaps the withdrawal agreement (or at least a declaration to
it) should address this. At the end of the transition period, the validity of outstanding
European Arrest Warrants issued before that date is governed by Article 58 of the
draft agreement, although that text has not been agreed yet either.

After the transition period ends –
unless it is somehow extended – then either the UK and EU will fall back on
general extradition law, or conclude a new treaty dealing with these issues.
The UK government prefers the latter option, and I have discussed this idea here.
Again the question will arise whether this case law on non-EU countries will
apply, and that question will arise under either scenario. In today’s judgment,
the Court of Justice analysed the text of the EU/US extradition treaty, and it
would equally have jurisdiction to rule (for the EU side) on how to interpret
any EU/UK treaty; but note that it said such treaties have to give way to the
application of primary EU law (the Treaties) in any event. So the Court’s
approach – give a Member State the possibility of prosecuting its own nationals
first, where it has jurisdiction – will necessarily limit extradition to the UK
after the end of the transition period.  

Human rights

Although today’s ruling did not
mention human rights, presumably because Mr Pisciotti had already served his
sentence in the USA without any reported allegation of human rights concerns, the
ECJ’s earlier ruling in Petruhhin
said the risks of torture or other inhuman or degrading treatment in Russia had
to be considered pursuant to the EU Charter of Fundamental Rights, taking account
of the relevant ECJ and ECHR case law. Subsequently, the ECJ ruling in Schotthöfer said extradition to face the
death penalty in a non-EU country is ruled out. These limitations to
extradition on human rights grounds will be relevant to any non-EU country; let
us hope that there is never any reason for a genuine concern as regards the UK on
these grounds after Brexit.

*Disclosure: I am a special
adviser to the House of Lords EU Committee on an inquiry
into a future EU/UK security treaty. The comments in this blog post are purely

Barnard & Peers: chapter 25,
chapter 27

Photo credit: capitalfm.co.ke

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