Table of Contents: I. Introduction. – II. Facts and legal background of the case. – III. Extradition of an EU citizen to a third State in light of Art. 18 TFEU. – III.1. Introduction. – III.2. Does extradition of EU citizens to third States on a basis of a bilateral agreement with the Member State fall within the EU law domain? – III.3. Is extradition of an EU citizen to a third State discriminatory within the meaning of Art. 18 TFEU? – III.4. Justification of discrimination of EU citizens in extradition cases. – IV. Protection of EU citizens against extradition to a third State under the Charter. – V. Conclusions.
Abstract: Extradition agreements between Member States and third States fall within the competence of Member States, but the ruling in Aleksei Petruhhin (Court of Justice, judgment of 6 September 2016, case C-182/15 [GC]) shows that Member States must exercise this competence in light of EU law if extradition may affect an EU citizen’s fundamental rights protected under the Treaties and the Charter of Fundamental Rights of the European Union. This can be the case if the EU citizen who is subject to extradition has exercised his right to free movement by moving from his home State to another Member State. Extradition of Petruhhin, an Estonian citizen, was requested by Russia while he was exercising his right to freedom of movement and residence in Latvia. As is the case in many States, the national law of Latvia does not extend the same level of protection against extradition to foreign citizens, as to its own nationals. The Court of Justice ruled that in such a case, extradition of an EU citizen to a third State is generally prohibited under Art. 18 TFEU and can only be justified if the prosecution in the home Member State is not possible. In addition, this case confirms earlier rulings that the extradition of an EU citizen will not be permitted if his fundamental rights under the Charter will be endangered in the requesting State. The case concerns prohibitions of absolute character, such as prohibition against torture and degrading treatment. To determine the possibility of breach of rights under the Charter, the Member State must undertake a rigorous verification of the level of protection of human rights in the relevant third State before deciding whether to grant the extradition request.
Keywords: EU citizenship – freedom of movement – discrimination – extradition – European Arrest Warrant – Charter of Fundamental Rights of the European Union.
* Professor, dr. juris, University of Oslo, Law Faculty, email@example.com.