The emerging EU extradition Law. Petruhhin and beyond
| Date | 01 June 2017 |
| DOI | 10.1177/2032284417711576 |
| Published date | 01 June 2017 |
| Subject Matter | Articles |
Article
The emerging EU extradition
Law. Petruhhin and beyond
Miguel Joa
˜o Costa
Bouillonstraat, Maastricht, The Netherlands
Abstract
In a recent decision, the Court of Justice of the European Union held that Member States which
apply a nationality exception in their extradition relations with third States are bound, under
certain circumstances, to accord equal protection to EU citizens other than their own nationals.
This article evaluates the nature, scope, impact and meaning of this ruling, and looks into two other
extradition cases that are currently awaiting preliminary rulings. The analysis conducted leads the
author to claim that these constitute ground-breaking developments which qualify as the advent of
a new area within EU criminal law.
Keywords
Extradition, jurisdiction in criminal matters, EU criminal law, EU citizenship, are a of freedom,
security and justice
Introduction
The question as to whether EU law might impose obstacles to extradition from EU Member States
to third States (‘outwards extradition’, or simply ‘extradition’) is a vivid one, as three cases have
reached the Court of Justice of the European Union (ECJ) for preliminary rulings.
The first is Petruhhin (C-182/15), the case of an Estonian national sought by Russia in relation
to drug-related charges. The ECJ deliv ered its ruling thereon on 6 September 2016, a nd this
constitutes the essential object of analysis of this article. In this ruling the ECJ declared that the
circumstance that the requested person is a EU citizen might impose the refusal of extradition, in
what can be labelled an ‘EU citizenship exception’. However, it is not entirely clear in which
hypotheses such an exception applies and how exactly it operates. This development raises yet
more questions, ranging from its possible impact on the national laws of the Member States to its
Corresponding author:
Miguel Joa
˜o Costa, Bouillonstraat 1-3, 6211 LH Maastricht, The Netherlands.
Email: miguel.joao@maastrichtuniversity.nl
New Journal of European Criminal Law
2017, Vol. 8(2) 192–215
ªThe Author(s) 2017
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DOI: 10.1177/2032284417711576
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significance in terms of the relative position of the EU in the wider world as far as international
cooperation in criminal matters is concerned. Petruhhin is also noteworthy for settling the applic-
ability of EU human rights law to outwards extradition, although this aspect is not emphasised in
this article, as it was fairly foreseeable in the light of the Charter of Fundamental Rights of the
European Union (CFREU).
The second case is Schottho¨fer & Steiner (C-473/15), which involve s an Austrian doctor
convicted in absentia to life imprisonment in the United Arab Emirates for mercy killing, and
who now fears being extradited if he travels to another Member State. The third is Pisciotti (C-191/
16), in which an Italian national was extradited on cartel charges from Germany to the USA, where
he is currently serving a sentence of imprisonment for two years after pleading guilty. These two
(still pending) cases reprise some of the issues of Petruhhin, but also raise other relevant ones
concerning outwards extradition, and hence are also addressed here, if only more briefly.
Petruhhin (C-182/15)
Main proceedings and request for a preliminary ruling
Aleksei Petruhhin is an Estonian who was arrested in Latvia and whose extradition was requested by
Russia on charges of attempted large-scale drug trafficking in criminal association. The request was
granted, but Petruhhin appealed, arguing that under a 1992 Agreement between Latvia, Estonia and
Lithuania he enjoyed the same rights in Latvia as a Latvian national and consequently could not be
extradited. The Latvian Supreme Court dismissed this claim, but conceded that extraditing the appellant
might breach the EU law principles of equal treatment and free movement. Accordingly, it annulled the
detention,
1
stayed the extradition proceedings, and referred to the ECJ for a preliminary ruling.
2
The request was received by the ECJ on 22 April 2015, and contained, in essence, the following
questions: (1) Do non-discrimination and free movement require that a citizen of any Member
State whose extradition is requested by a third State, pursuant to a treaty binding a Member State
and such third State, be accorded the same level of protection that is accorded to a citizen of the
Member State in question? (2) If so, which conditions apply – those of the Member State of which
the person is a national, or those of the Member State of which he/she is a resident? (3) Do the
prohibitions to extradite in case of risk of torture/ill-treatment or of applicability of the death
penalty apply? If so, how should the compliance of the third State with human rights be verified?
3
The following paragraphs focus on the first two questions, which required from the Court an
unprecedented assessment of the implications of EU law on extradition matters. The latter question
also involves outwards extradition, but – as noted above – its answer was fairly predictable, and
therefore it is addressed only briefly.
The opinion of the advocate general
On 10 May 2016, AG Bot delivered his opinion on the case. In a nutshell, he concluded that
difference in treatment between a Member State’s nationals and other EU citizens will, but will
1. Petruhhin later returned to Estonia, but this did not render inadmissible the proceedings before the ECJ: see Opinion of
AG Bot, 10 May 2016, §§24-30, and Judgment of the Court, 6 September 2016, §§18-24.
2. For further details, see Opinion, §§12-20; Judgment, §§10-17.
3. See OJ C 205, 22 June 2015, p. 23–24.
Costa 193
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