Art. 20 (1) TFEU (Treaty on the Functioning of European Union) stipulates that all nationals of an EU Member State also possess European Union citizenship. This citizenship of the European Union brings several advantages with it. Among other things, Art. 21 TFEU provides for a right to freedom of movement and residence for EU citizens. This means that citizens of EU Member States can establish their residence or domicile in any other Member State. Another right of citizenship of the European Union is laid down in Article 18 TFEU, which prohibits any discrimination on nationality.

The European Court of Justice had to deal with these rights of Union citizenship in its judgement 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 narcotic drugs with which he is charged. Mr P. was listed as wanted on the Interpol website. He was arrested in Latvia and remanded in custody. Mr P. wished 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 European Court of Justice (ECJ) ruled that an EU Member State is not obliged to protect all (other) EU citizens residing in its territory from extradition to the same extent as its nationals. However, it also ruled that a Member State to which an extradition request is made in respect of an EU citizen who is a national of another Member State present on its territory must first inform that other EU Member State before acting on the extradition request. In this case, Latvia should therefore have informed the Estonian authorities.

Moreover, at the request of the Member State of which the Union citizen is a national (Estonia), the Member State in which the Union citizen is present (Latvia) must surrender the EU citizen to that Member State by the Framework Decision 2002/5843. This provides that the Member State (Estonia) can prosecute the EU citizen for offences committed abroad.

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What Consequences does the ECJ Ruling in the Petruhhin Case have for Extradition Proceedings in Germany?

Germany is a member state of the EU, so German courts are bound by ECJ rulings in legal matters concerning the same subject matter. This means for EU citizens who live permanently in Germany or are staying there even temporarily that in the 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 Member State of which the person concerned is a national and give it preference. If this member State submits a corresponding extradition request, Germany must transfer the Union citizen concerned to this state.


What are the Conditions for Extradition to the Member State?

The EU citizen concerned must be surrendered to the EU Member State by Framework Decision (Rb) 2002/5843. 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.

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 at least four months (Art. 2 I Rb).

Furthermore, the principle of double criminality applies. Therefore, the surrender of the person concerned can be made conditional on the Member State request to extradite, making the act for which the European arrest warrant was issued punishable.

The Framework Decision provides for an exception to this principle of double criminality in the case of 32 offences. Therefore, 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 organisation,
  • terrorism,
  • trafficking in human beings and organs,
  • sexual exploitation of children and child pornography,
  • drug trafficking and trafficking in arms, ammunition and explosives,
  • corruption, fraud and money laundering,
  • counterfeiting of currency and other means of payment,
  • cybercrime,
  • environmental crime,
  • facilitation of unauthorised entry and residence,
  • intentional homicide and grievous bodily harm,
  • kidnapping, false imprisonment and hostage-taking
  • racism and xenophobia,
  • extortion and racketeering,
  • counterfeiting and piracy,
  • falsification of trafficking in official documents,
  • trafficking in stolen motor vehicles,
  • rape,
  • arson.

In addition, the Court pointed out that there is a fundamental protection against extradition to such states where there is a threat of the death penalty, torture or other inhuman or degrading treatment or punishment (violation of Art. 3 of the European Convention on Human Rights).


Is the Judgement in the Petruhhin Case also Applicable to Non-EU Citizens?

In its judgment of 02.04.2020 – C-897/19 PPU, the European Court of Justice 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. However, in the case of an Icelandic national, the ECJ ruled that EU law was also applicable because Iceland is a party to the European Economic Area (EEA Agreement), which was concluded with the EU states. Thus, this agreement was also an integral part of Union law. In addition, third-country Iceland belongs to the Schengen area, participated in the Common European Asylum System, and concluded an agreement with the Union on the surrender procedure.

The Court of Justice thus rules for extradition cases of nationals of EFTA States (Iceland, Lichtenstein, Norway) that the exchange of information with the EFTA State of which the person concerned is a citizen must be given priority to allow them to submit a request for the surrender of his citizen for prosecution, Since the Framework  Decision 2002/584 did not apply to Iceland, submission could be considered based on the Surrender Convention, the provisions of which were very similar to those of the Framework Decision.


Are you Affected by an Extradition Request?

Schlun & Elseven Rechtsanwälte PartG is available 24 hours a day to advise you and help you in any extradition law situation. Our offices are located in Cologne, Aachen and Düsseldorf, and we have conference room facilities around Germany. We can be reached from anywhere in the world through different communication options.  Call us at 0241 4757140 or send us an e-mail to info@se-legal.de or use our online form.

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