Op-Ed: “For the Benefit of Mr K? Extraditions of EU Citizens and Obligations of the Requested States” by Leandro Mancano
The Court of Justice (Court or CJEU)’s judgment in BY (Case C‐398/19), rendered on the 17th of December, answers – and raises – important questions about the scope of application of the Petruhhin case law.
Petruhhin and His Siblings
The Petruhhin principle(s) concerns the following situation. Mr K, citizen of the Member State A, is in Member State B. Member State B receives an extradition request against K from third State C. Member State B prohibits extradition of its own nationals only. Because of the cross-border element of the situation, citizen K falls under the scope of Articles 18 and 21 TFEU. The difference of treatment perpetrated by Member State B, however, would result in K’s extradition outside the EU and a restriction of his right to free movement. The objective of fighting impunity inherent in extradition, the CJEU found in Petruhhin, could be achieved with less restrictive means: Member State B must inform K’s state of nationality of the extradition request, so that the latter can issue an EAW (as long as it has jurisdiction to do so) against K and Member State B can surrender him. The reasoning of the CJEU is founded on the consideration that ‘in accordance with the principle of sincere cooperation, the EU and Member States must assist each other in carrying out tasks which flow from the Treaties’ (Petruhhin, para 42).
That being the basic Petruhhin scenario, the Court has clarified and extended its scope of application over the following years (Pisciotti, C-191/16; Raugevicius, C-247/17; I.N., C-897/19 PPU).
The questions raised in BY concerned a Ukrainian citizen who moved to Germany in 2012 and obtained Romanian nationality in 2014 based on descent, without having ever resided there. In 2016, Ukraine sent a request for extradition to Germany to conduct a criminal prosecution against BY. The referring court sought clarifications about, primarily, the obligations imposed by EU law on Germany as the requested State.
The Judgment. This Court Is not for Turning
The Advocate General (AG) addressed the reasons why the Court should consider reversing – or at least reassessing – its Petruhhin principle(s). According to the AG, there is no discrimination between the requested State’s nationals and the person for which extradition is sought because the two situations are not comparable (Opinion, point 18). The Petruhhin law also gives rise to a series of practical questions around, for example, the length of time German authorities should wait for Romania’s decision before extraditing, or the requirement that Germany asks for Ukraine’s consent before transmitting the relevant information of the case to Romania.
In general, the AG found that the duty of sincere cooperation on Germany would end once the latter has ‘placed [Romania] in the position’ to make a decision as to whether to issue an EAW or not. The Petruhhin case law may not occasion an obligation for Germany to take over the prosecution of a non-national who has been the subject of a third country extradition request.
The Court upheld its case law and further developed the Petruhhin principles. By mostly relying on the first subparagraph of Article 4(3) TEU, the CJEU clarified the obligations of the requested State. Firstly, Romanian authorities shall be informed about: the existence of an extradition request against one of their nationals; all the matters communicated by Ukraine, while respecting the confidentiality sought by the third country and keeping the latter duly informed. Secondly, Romania shall be informed of any changes in the situation of the person that might affect the issuing of a EAW. Thirdly, a reasonable time limit should be set, upon the expiry of which, in the absence of a decision by Romania, the extradition should be carried out.
Neither of the EU States involved is obliged, under EU law, to make an application to the requesting State for the transmission of the criminal investigation file. This might cause significant delay to the extradition procedure and jeopardise the objective of avoiding impunity. Any request, in this sense, is a matter for the States’ discretion. Nor can the requested State be obliged to take over the prosecution for offences committed by a national of another Member State committed in a third country, even though the law of the requested State allows it to do so. Such an interpretation would go beyond the limits that EU law may impose on the exercise of the discretion enjoyed by that State as to whether to prosecute or not. This is a decision falling within the competence of the Member States, even though they must exercise that competence with due regard for EU law.
While a relatively new-born authority, the Petruhhin case law has already had a significant impact on EU, and national, law, with some Member States like Latvia amending their legislation to implement the Court’s judgment.
The general impression is that the Petruhhin law strikes a balance between different interests and objectives. It is not an unconditional lifeline for the benefit of Mr K, the EU citizen in our example. In the systemic assessment carried out by the CJEU, the fight against impunity – in turn connected to Member States’ obligations under international law – plays a particularly prominent role and can override EU citizenship rights.
Consistently with previous cases on the subject matter, in BY the Court offered an interpretation of Articles 18 and 21 TFEU with Article 4(3) TEU at the core of its reasoning. The question as to what legal obligations these three provisions are capable of imposing on Member States is key. To this end, the wording of the preliminary ruling seems to set up the stepping stone for future breakthrough.
On the one hand, there is the issue of the minimum conditions required for the application of Articles 18 and 21 TFEU. In Petruhhin, the Court considered the existence of a simple cross-border movement – without permanent residence or further links with the requested State – as sufficient. This was confirmed in Raugevicius where, although the person was residing permanently in the requested State, the Court connected the application of Articles 18 and 21 to the exercise of freedom of movement. In BY, the reference to the exercise of free movement disappeared even if the person had moved to Germany before acquiring EU citizenship. Both the AG and the CJEU found the case at hand as falling straightforwardly within the scope of Treaty. A contrary interpretation, the Court found, would undermine the effectiveness of such status. It is not unthinkable, however, that the CJEU will have to redefine the boundaries of Petruhhin in cases based on more controversial circumstances.
On the other hand, the question around the obligations imposed on the two EU States was resolved in a rather uncontroversial way. The Court decisively stated that the decision over prosecution is a matter for the national authorities, while also adding that due regard should be given to EU law. The same discretion is enjoyed by the State of nationality of the person concerned. However, part of the success of the Petruhhin case law lies in the absence of a risk of violation of Article 19 of the Charter of Fundamental Rights. The materialising of a credible danger of inhumane treatment in the third State would bar extradition, and require the devising of alternative arrangements. What if, in a situation of that kind, Romania – to maintain the example of the States involved in BY – decided not to issue a EAW? Faced with the prospect of impunity due to the impossible extradition and the absence of national authorities willing to prosecute, Article 4(3) TEU might be used to expand the States’ obligation beyond what has been decided so far.
On the questions raised in BY, the response of the CJEU is overall consistent and sound. It is also clear, however, that slight change in the factual context might play havoc with the framework established by the Court.
Leandro Mancano is a Senior Lecturer in EU law at Edinburgh Law School.