Steve Peers

While the European Arrest Warrant (EAW) is a well-known EU law that streamlined extradition between member states, EU law generally doesn’t govern extradition to non-EU nations. Exceptions exist in cases of pre-existing treaties, like those with the USA and Norway/Iceland, or regarding asylum seekers. The EU’s asylum laws restrict extraditing asylum-seekers before determining if the requesting country intends to persecute them.

The recent Court of Justice of the European Union (CJEU) ruling in the Petruhhin case has changed this. The court affirmed that EU law applies to such situations and clarified relevant issues while leaving others open. This judgment has implications for future UK-EU extradition practices post-Brexit.

Background

Extradition between the EU and non-EU countries involves national laws, bilateral agreements, and multilateral treaties. The most significant of these is the Council of Europe’s Convention on Extradition, ratified by all European countries and three non-EU nations, along with four additional protocols ratified by fewer states.

Typically, states refrain from extraditing their citizens. While the EAW overrides this within the EU, concerns arise about potential impunity if citizens commit crimes abroad. To address this, many states, including EU members, have expanded their jurisdiction to cover crimes committed by their citizens in other countries. Many EU laws and international treaties actually mandate this extraterritorial jurisdiction for certain transnational crimes.

The EAW briefly addresses conflicts between EAWs and extradition requests from non-EU countries. It suggests that national authorities decide which request takes precedence after considering the context, relevant treaties, severity and location of the alleged offenses, the dates of the requests, and whether the goal is to apprehend a fugitive or enforce a sentence.

This differs from the initial EAW proposal, which prioritized EAWs over extradition requests from countries not party to the Council of Europe Convention. That clause was removed following pressure from the US government during the law’s negotiation in 2001, which was largely influenced by the 9/11 attacks, despite the law not being limited to terrorism.

Judgment

The Petruhhin case involved an Estonian citizen wanted by Russia for organized crime offenses. Estonia’s policy against extraditing its citizens outside the EU shielded him while within its borders. However, he was apprehended in Latvia, which decided to honor Russia’s request. While Latvia also doesn’t typically extradite its citizens outside the EU, this protection didn’t inherently apply to an Estonian citizen.

Mr. Petruhhin invoked his EU citizenship, arguing that his rights should mirror those of Latvian citizens, protecting him from extradition to Russia from Latvia or any other Member State with similar extradition policies.

The CJEU ruled that while EU law doesn’t explicitly address this, the case fell under EU free movement law because Mr. Petruhhin was exercising his free movement rights, entitling him to equal treatment with Latvian nationals. However, this right could be superseded to prevent impunity for alleged crimes. Since Latvia, like many nations, extends its jurisdiction to cover its citizens’ crimes abroad but not those of other countries’ citizens, this distinction could justify different treatment in extradition cases.

To mitigate the impact on free movement rights, the court stipulated that Latvia must first consult with Estonian authorities to determine if they want to prosecute him based on their extraterritorial jurisdiction before transferring him to Russia. This provision is significant as it’s thought that individuals are more likely to experience a fair trial in their own country. At a minimum, it usually ensures access to defense and court proceedings in their native language and allows any pre-trial detention to take place closer to their support network.

The court also stated that any extradition to Russia must comply with Article 4 of the EU Charter of Fundamental Rights, prohibiting torture or inhumane treatment. This aligns with Article 3 of the European Convention on Human Rights and its case law. Essentially, any credible risk of such treatment in Russia would prevent extradition. It’s important to remember that the Charter also forbids extraditions that could result in the death penalty.

Comments

The court rightly linked EU free movement law and extradition to non-EU states, although its reasoning could be more concrete. A more compelling argument is that the threat of extradition every time he left Estonia would discourage Mr. Petruhhin from exercising his free movement rights within the EU.

Another question is whether EU law applies if a Member State considers extraditing its citizen to a non-EU country. While not common, as many Member States avoid this altogether, situations where they do raise this question. Logically, the case law on EU citizenship, distinct from free movement, would apply. Based on developments since the Zambrano judgment, forcing citizens outside the EU, essentially depriving them of their EU citizenship, is generally prohibited. This principle applies here as well: extradition of citizens is justifiable to prevent impunity, but that’s contingent upon whether the extraditing state prosecutes its citizens for crimes committed abroad, as many already do.

Furthermore, are there other reasons for extradition to a non-EU country besides preventing impunity? The judgment isn’t clear on this. However, it could be interpreted to cover cases where a fugitive is already serving a sentence. In such instances, Latvia, for example, would need to check with Estonia if they could take over the punishment imposed by Russia, according to the Council of Europe’s treaty on the transfer of prisoners or another relevant international treaty.

Could there be additional grounds for preventing extradition to a non-EU state besides the Charter’s ban on the death penalty, torture, and the precedence of EAWs? For example, what if the individual has already been tried in a Member State or a third country? While the EU has a cross-border ban on double jeopardy, it only applies to Member States and Schengen associates, not countries like Russia or the USA. Although extradition treaties sometimes address this, they don’t cover every scenario. A case currently before the CJEU should provide clarity on this issue.

Logically, the ruling could also apply if a third Member State could assert jurisdiction. For instance, an Estonian in Latvia wanted by Russia could be prosecuted or serve a sentence in France if they allegedly assaulted a Russian citizen in France, or a French citizen in Russia, as some countries claim jurisdiction when their citizen is a victim.

This leads to the conflict between an EAW and an extradition request from a non-EU state. The CJEU didn’t address this, as no EAW had been issued. However, the judgment suggests a higher likelihood of such conflicts in the future, especially if Estonia issues an EAW. If this happens, the ruling implies that the EAW’s open-ended conflict rule must yield to the Treaties’ primary law. In essence, the Estonian EAW takes precedence over the Russian extradition request. The court effectively prioritized EAWs over nearly all non-EU extradition requests, unlike the initial Commission proposal, which only prioritized EAWs over requests from non-Council of Europe states.

However, the USA already has an extradition treaty with the EU. (The agreement with Norway and Iceland is not yet ratified). The judgment repeatedly states that the general rules outlined do not affect extradition treaties between the EU and other countries. Since the court can interpret any treaty the EU signs with non-EU states, it can presumably interpret the EU-US treaty. A pending case before the CJEU requests the court to do just that.

Brexit?

This judgment has potential implications for Brexit. The UK government recently suggested it would seek continued criminal law cooperation with the EU. Transitional arrangements regarding pending EAWs on Brexit Day will hopefully be addressed in the EU-UK withdrawal treaty under Article 50 TEU. In fact, potential complications arising from Brexit are already surfacing in this area, with several challenges in Ireland regarding the execution of UK EAWs based on the impending Brexit. The CJEU may need to address these issues before Brexit Day.

Post-Brexit, the EU can undoubtedly establish an extradition agreement with the UK, as the judgment encourages such treaties. In fact, the judgment could argue for the EU’s exclusive competence over extradition treaties with non-EU countries, given that any Member State agreements could affect the EAW, at least for EU citizens. This would prevent the UK from signing extradition agreements with individual EU countries, limiting them to dealing with the EU as a whole.

Should a deal fail, the UK and EU could default to the Council of Europe’s extradition convention. However, this would result in far fewer and slower extraditions compared to the EAW.

Even with a UK-EU deal, Member States might still refuse to extradite their citizens to the UK, as seen with the Norway and Iceland treaty. However, based on the new judgment, even if they are willing to extradite to the UK under a treaty, they might be legally barred from doing so if the fugitive can be tried or serve their sentence within the remaining EU. While the UK could still assist in prosecuting such individuals, it would be more costly for the UK authorities than conducting the trial in the UK.

Barnard & Peers: chapter 25, chapter 27, chapter 13

JHA4: chapter II:3

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