Suppose Germany is requested to extradite a person and differentiate between nationality. In that case, German or non-German citizens, the latter with increased protection via Article 16 of the German Constitution – it must also be differentiated whether the requestion state is an EU member state or not. In this respect, the ECJ has established an essential procedural requirement in the Petruhhin case (Case C-182/15 in NJW 2017, 378).
In this case, Mr Petruhhin, an Estonian national (an EU citizen), was arrested in Latvia (EU member state) based on a Russian extradition request. Therefore, it was a case of extradition of an EU citizen to a non-EU member state. The European Court of Justice ruled that an EU member state is not obliged to protect all other EU citizens residing on its territory from extradition. Therefore, citizens of other EU states do not enjoy the same level of protection as their nationals. However, the member state requested to extradite an EU citizen by a non-EU member state must first inform the member state of which the person in question is a national. This is because this Member State has a priority right to have their own national transferred for criminal prosecution before extradition to the non-EU Member States.
The same applies if the USA, which is also not a member state of the EU, submits an extradition request to Germany about a non-German EU citizen. Thus, the United States of America requests the extradition of a Dutch citizen from Germany. For example, the German authorities must first contact the Dutch authorities before taking such a step. The Netherlands, as another EU Member state, can then decide as a matter of priority whether it wants its citizen extradited to its territory or whether the person may be deported from Germany to the United States.
In addition to the extradition treaty that the Federal Republic of Germany has concluded with the USA, there is also another extradition treaty between the European Union and the United States of America. According to this agreement, the EU law does not prevent extradition. Germany as a member state can therefore extradite other EU citizens to the USA since neither the right to freedom of movement under Article 21 of the Treaty on the Functioning of the European Union (TFEU) nor the prohibition of discrimination under Article 18 TFEU stands in the way of this procedure. However, considering the ECJ mentioned above case law, Germany would have to inform the other member state beforehand. Furthermore, the gratin of extradition must comply with the agreement’s requirements and be expressly justified. In particular, the request must be based on an extraditable offence. Extraditable offences according to the extradition treaty between the USA and the EU are:
- Offences punishable by the law of both the requesting and the requested country by a custodial sentence not exceeding one year or a more severe penalty;
- Attempts to commit or participate in the commission of such an offence.
If several countries request the extradition of a person and there is no special prerogative of an EU member state, the executive authority of the requested (EU) state is authorised to decide which country the person should be extradited.