Professor Steve Peers, University of Essex*

A recent European Court of Justice (ECJ) decision in the Pisciotti case concerning the extradition of citizens from one EU Member State to a non-EU country (in this instance, the USA) provides further legal precedent in this domain and carries potential implications for Brexit. This ruling expands on the September 2016 Petruhhin judgment, which dealt with extraditing citizens from one EU Member State to Russia.

The Pisciotti case revolves around an Italian citizen extradited to the USA following his arrest in Germany while in transit. After entering a guilty plea, serving his sentence in the USA, and subsequently returning to the EU, he filed a lawsuit for damages. He contended that Germany should have afforded him the same treatment as German citizens, who cannot be extradited to countries outside the EU.

The ECJ determined that the extradition of a citizen from one EU Member State to a non-EU country generally falls under the purview of EU law because it impacts free movement rights. In this particular case, the presence of an EU/US extradition treaty also brought the matter within the scope of EU law. However, the free movement aspect holds greater significance as it extends to non-EU extradition cases regardless of whether an extradition treaty exists between the EU and the non-EU country involved.

Furthermore, the Court broadly interpreted free movement in this context, affirming that Mr. Pisciotti could invoke his free movement rights even during a brief transit through another Member State. The court had previously accepted in the 2017 Schotthöfer ruling that even the cancellation of a presentation in another Member State due to apprehension of extradition from that State to a non-EU country was sufficient to trigger the application of free movement law. Based on this, any EU citizen aiming to contest an extradition request from a non-EU country by invoking EU free movement law could theoretically bring the matter within the scope of free movement law. This could be achieved by purchasing a ticket for a low-cost flight (or other transportation) to another Member State and subsequently canceling it, citing fear of extradition.

It is important to note that such a challenge is not guaranteed to succeed on its merits. After acknowledging that the EU/US extradition treaty allowed Member States to refuse the extradition of their own citizens, the Court highlighted that extraditing citizens from other Member States must adhere to EU law. This holds true whether issues emerge under an extradition treaty with the EU, with the specific Member State involved, or pursuant to national constitutions. The Court then reaffirmed its earlier ruling that while citizens of another Member State should generally receive the same treatment as nationals of their residing State, this principle does not extend to absolute equal treatment concerning the refusal to extradite a State’s own citizens – a rule many States apply to their citizens except within the European Union. This distinction is justified based on the grounds of preventing impunity for criminal prosecution. Notably, while both the current case and the first case adjudicated by the ECJ pertain to pending prosecutions, the intervening Schotthöfer case involved a sentence for a criminal offense. The Court refrained from addressing the potential transfer of that sentence.

This derogation from equal treatment is contingent upon the principle of proportionality. In applying this principle, the Court determined that the Member State of which the fugitive is a citizen must be contacted and provided the opportunity to prosecute. The Court rejected objections raised by Member States to the Petruhhin ruling on this point, reiterating the precedence given to prosecution by the EU citizen’s Member State of nationality, provided that State possesses the jurisdiction to prosecute. The situation of individuals holding dual citizenship in two Member States – or in one Member State and one non-EU country – has yet to be addressed. It is plausible that in cases where a sentence has already been imposed, the Member State of nationality should, by analogy, be given the chance to transfer the sentence under the relevant international treaty, assuming the Court did not intend for Schotthöfer to entirely preclude sentence transfers.

Impact on Brexit

Following Brexit, two distinct periods need to be considered concerning extradition between the UK and the EU. Initially, the European Arrest Warrant law will be applicable during the transition period. However, there is a stance within the EU27 that certain Member States may decline extradition requests for their own citizens due to constitutional reasons (refer to Article 168 of the latest draft of the withdrawal agreement, which is still pending final agreement). Whether this case law concerning extradition to non-EU countries also applies in this context is debatable; it is possible that the withdrawal agreement (or at least a declaration accompanying it) should address this issue. Once the transition period concludes, the validity of outstanding European Arrest Warrants issued before that date will be governed by Article 58 of the draft agreement, although this particular section is also awaiting finalization.

After the transition period – unless an extension is agreed upon – either the UK and EU will revert to general extradition law, or they will establish a new treaty to address these matters. The UK government favors the latter option. A recurring question will be whether this case law pertaining to non-EU countries will be applicable, a question that arises under both scenarios. In the present judgment, the Court of Justice scrutinized the EU/US extradition treaty, and it would equally have the authority to rule (on behalf of the EU) on the interpretation of any EU/UK treaty. However, it’s worth noting that the Court stated such treaties must, in any case, give way to the application of primary EU law (the Treaties). Therefore, the Court’s approach, which is to allow a Member State the initial opportunity to prosecute its own nationals when jurisdiction permits, will inherently limit extradition to the UK following the conclusion of the transition period.

Human rights

While the current ruling did not explicitly mention human rights, presumably because Mr. Pisciotti had already completed his sentence in the USA without any reported claims of human rights violations, the ECJ’s previous judgment in Petruhhin stated that risks of torture or other forms of inhumane or degrading treatment in Russia required consideration under the EU Charter of Fundamental Rights, taking into account relevant ECJ and European Convention on Human Rights (ECHR) case law. Subsequently, the ECJ ruling in Schotthöfer determined that extradition to face the death penalty in a non-EU country was not permissible. These limitations on extradition based on human rights concerns are applicable to any non-EU country. One hopes that there will never be a genuine cause for concern regarding the UK in this regard after Brexit.

*Disclosure: I serve as a special adviser to the House of Lords EU Committee for an inquiry exploring a future EU/UK security treaty. The views expressed in this blog post are solely my own.

Barnard & Peers: chapter 25, chapter 27

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