Art. 20 (1) TFEU stipulates that all EU Member State nationals also possess European Union citizenship. This citizenship of the European Union brings with it several advantages. Among other things, Art. 21 TFEU provides for a right to Freedom of Movement and residence for EU citizens. This means that EU Member States citizens can establish their residence or domicile in any other EU Member State. Another right of citizenship of the European Union is laid down in Article 18 TFEU, which prohibits any discrimination on nationality. However, is it legal for EU Member States to extradite EU citizens from another EU Member State? This question concerning EU citizenship rights and the ability of EU Member States to extradite EU citizens was ruled upon by the European Court of Justice in its judgment in the Petruhhin case (NJW 2017, 378).

The case dealt with an extradition request sent by the Russian authorities to the Latvian authorities concerning Mr P., an Estonian national, connected with an offence of trafficking in narcotics. Mr P. was listed as wanted on the Interpol website. He was arrested in Latvia and remanded in custody. Mr P. wanted to prevent his extradition, citing Latvian law and a treaty that generally prohibits its own citizens' extradition to Russia. However, this reservation does not apply to Estonian nationals living in Latvia.

The ECJ ruled that an EU Member State is not obliged to protect all EU citizens residing in its territory from extradition to the same extent as its own nationals. However, it also ruled that a Member State to which a request is made to extradite an EU citizen who is a national of another Member State and is present on its territory must first inform that other EU Member State before acting on the extradition request.

It must also surrender that EU citizen to it upon its request, per Framework Decision 2002/5843 if the Member State of which the EU citizen is a national is responsible for prosecuting the EU citizen for crimes committed abroad.

What are the Consequences of the Petruhhin ECJ Ruling for Extradition Proceedings in Germany?

Germany is a member state of the EU, and German courts are therefore bound by ECJ rulings in legal matters concerning the same subject matter. This means for EU citizens living or staying in Germany that in case of an extradition request from a third country, Germany is obliged not to extradite the EU citizen directly to the requesting country, but to contact the EU Member State of which the person concerned is a national and to give preference to this Member State. At the request of this Member State, Germany would have to hand over the person concerned to the Member State in question.

What are the Conditions for Extradition to the Member State?

The EU citizen concerned must be surrendered to the EU Member State per Framework Decision 2002/5843, if the Member State of which the EU citizen is a national is responsible for prosecuting the Union citizen for crimes committed abroad. The Framework Decision requires surrender based on a European arrest warrant by the issuing state.

It should be noted that the European arrest warrant cannot be issued based on any act. These acts must be punishable under the law of the issuing state by either a custodial sentence or a detention order for a maximum period of at least 12 months (Art. 2 I Rb). If the person concerned has already been sentenced to a penalty or a detention order has been issued, this must cover a period of at least 4 months (Art. 2 I Rb).

Furthermore, the principle of double criminality applies. The surrender of the person concerned can be dependent on whether the executing state also criminalizes the act for which the European arrest warrant was issued.

The Framework Decision provides for an exception to the principle of double criminality in the case of 32 criminal acts or areas of criminal activity for which extradition must take place even if the act is not punishable under the law of the extraditing state (Article 2(2)). These offences include, among others:

  • participated in a criminal organization,
  • terrorism,
  • trafficking in human beings,
  • sexual exploitation of children and child pornography,
  • drug trafficking,
  • illicit trafficking in weapons, ammunition and explosives,
  • corruption,
  • fraud,
  • money laundering,
  • counterfeiting of currency and other means of payment,
  • cybercrime,
  • environmental crime,
  • aiding and abetting illegal entry and residence,
  • intentional homicide,
  • grievous bodily harm,
  • organ trafficking,
  • kidnapping,
  • deprivation of liberty and hostage-taking,
  • racism and xenophobia,
  • extortion and racketeering,
  • counterfeiting and piracy,
  • falsification of and trafficking in official documents,
  • trafficking in stolen motor vehicles,
  • rape,
  • arson,
  • the hijacking of aircraft and ships, and
  • sabotage.

Moreover, the Court pointed out that there is a fundamental protection against extradition to states where there is a threat of the death penalty, torture or other inhuman or degrading treatment.

Does the Ruling in the Petruhhin case apply to non-EU citizens?

In its judgment of 02.04.2020 – C-897/19 PPU, the ECJ held that Article 18 TFEU (non-discrimination on the grounds of nationality) and Article 21 TFEU (freedom of movement and residence of Union citizens), as interpreted in the Petruhhin judgment, do not apply if the person concerned is not an EU citizen. In the case of an Icelandic national, however, the ECJ ruled that EU law was also applicable because Iceland is a party to the EEA Agreement, which, as an agreement under international law concluded by the EU, is an integral part of EU law. The third-country Iceland belongs to the Schengen area and is a contracting party to the EEA Agreement. It also participates in the Common European Asylum System and has concluded an agreement with the Union on the surrender procedure.

The ECJ thus ruled for extradition cases of nationals of EFTA States that preference should be given to exchange information with the EFTA State of which the person concerned is national to allow them to submit a request for surrender of his nation for prosecution. Since Framework Decision 2002/584 did not apply to Iceland, surrender could be considered based on the Convention on surrender procedures, the provisions of which were very similar to those of the Framework Decision.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.