Extradition To Non-Eu Countries: The Limits Imposed Yesteryear Eu Citizenship

Steve Peers

One of the best-known European Union laws created the European Arrest Warrant (EAW), which replaced the prior rules governing extradition betwixt Member States. But on the other hand, inwards regulation European Union police push clit has nil to produce amongst extradition to non-EU countries, except where the European Union has agreed a treaty on this number (as it has amongst the USA together with Norway together with Iceland), or equally regards asylum-seekers (the EU’s asylum procedures police push clit limits their extradition to their province of origin, because it’s necessary to determine begin if the province which seeks to prosecute them is inwards fact persecuting them).

Yesterday’s CJEU judgment inwards Petruhhin altered this legal position. European Union police push clit does apply to such issues, together with the Court clarified unopen to relevant issues patch leaving others open. Furthermore, the judgment raises the query of hereafter UK/EU relations on extradition next Brexit.

Background

Extradition betwixt the European Union together with non-EU countries is governed past times a combination of national police push clit together with bilateral together with multilateral treaties – most notably the Council of Europe Convention on Extradition, which has been ratified past times all 47 European countries addition 3 non-EU countries. There are 4 farther Protocols to this Convention, which receive got been ratified past times fewer States.

Influenza A virus subtype H5N1 fundamental characteristic of extradition police push clit is that inwards regulation most States volition non extradite their ain citizens, although inside the EU, the EAW police push clit has overruled whatever absolute ban on surrendering nationals equally betwixt Member States. While the refusal to extradite citizens could run a run a risk of impunity if those citizens commit criminal offences inwards unopen to other country, most States avoid that run a risk past times extending their criminal jurisdiction to encompass acts of their citizens committed exterior their territory. In fact many European Union laws together with international treaties require States to assert such extraterritorial jurisdiction equally regards specific transnational crimes.

The EAW police push clit says a niggling well-nigh possible conflict betwixt EAWs together with extradition requests from tertiary countries. It states exactly that inwards the illustration of such a conflict, the national authorisation should create upwards one's heed which takes priority ‘with due consideration of all the circumstances’, including the relevant treaty together with ‘the relative seriousness together with house of the offences’, the relevant dates of the requests together with whether the extradition asking or EAW aims to obtain custody of a fugitive for trial or to serve a judgement already imposed.

This compares amongst the master copy cross-border ban on double jeopardy, but it alone applies to Member States together with Schengen associates, non to countries similar Russian Federation together with the USA. Extradition treaties sometimes address this issue, but don’t e'er encompass every double hazard scenario. Influenza A virus subtype H5N1 pending case earlier the CJEU should clarify this issue.

Next, logically the ruling would likewise apply past times analogy if a third Member State could apply its jurisdiction: say an Estonian inwards Republic of Latvia was wanted past times Russian Federation but could potentially endure prosecuted or serve a judgement inwards France, due to an [alleged] laid on against a Russian citizen inwards France, or a French citizen inwards Russia. (Some countries assert criminal jurisdiction where ane of their citizens was a victim of crime).

This brings us to the number of conflict betwixt an EAW together with an extradition asking from a non-EU state. The CJEU didn’t receive got to comment on this number inwards its judgment, because no EAW had been issued yet. But the Court’s judgment necessarily way that at that topographic point is to a greater extent than probable to endure such a conflict inwards future, if Republic of Estonia indeed issues an EAW. And if that happens, the novel judgment implies that the open-ended conflict dominion inwards the EAW has to give way to the primary police push clit of the Treaties: hence the Estonian EAW has to receive got precedence over the Russian extradition request. The Court has inwards consequence enshrined priority for EAWs over (almost) all non-EU extradition requests, whereas the master copy Commission proposal, equally noted above, would receive got given such priority alone over extradition requests from non-Council of Europe states. Perhaps the Americans should likewise receive got lobbied the Court of Justice.

But then, the USA has its ain extradition bargain already amongst the EU, equally noted at the outset. (The bargain amongst Kingdom of Norway together with Republic of Iceland has non been ratified yet). The Court says several times inwards its judgment that the full general rules it elaborates hither are without prejudice to extradition treaties concluded betwixt the European Union together with tertiary countries. Presumably it tin dismiss translate the EU/USA treaty, since it tin dismiss translate whatever treaties which the European Union signs amongst non-EU states. In fact, there’s a pending case earlier the CJEU which asks the Court to translate this rattling treaty.

Brexit?

This judgment is in all likelihood relevant for Brexit. The United Kingdom of Great Britain together with Northern Ireland of Britain together with Northern Republic of Ireland authorities has of late hinted that it volition seek unopen to continuation of criminal police push clit cooperation amongst the EU. There volition endure transitional issues amongst EAWs pending on Brexit Day, which the EU/UK withdrawal treaty concluded nether Article 50 TEU volition hopefully address. In fact at that topographic point are already possible complications arising from Brexit inwards this area, equally at that topographic point are several challenges inwards Ireland to the execution of United Kingdom of Great Britain together with Northern Ireland of Britain together with Northern Republic of Ireland EAWs on the grounds that Brexit is coming. The CJEU may good endure called on to address these issues fifty-fifty earlier Brexit Day.

For the seat after Brexit, it’s undoubtedly possible for the European Union to conclude an extradition organization amongst the UK, equally the Court’s judgment actively encourages the European Union to sign such treaties. In fact, the judgment mightiness arguably endure the reason of an declaration for European Union exclusive competence over extradition treaties amongst non-EU countries, on the reason that whatever Member State agreements would touching the performance of the EAW law, at to the lowest degree equally regards European Union citizens. That would hateful that the United Kingdom of Great Britain together with Northern Ireland of Britain together with Northern Republic of Ireland could no longer sign extradition deals amongst private European Union countries, but alone amongst the European Union equally a whole.

If no bargain were reached, the United Kingdom of Great Britain together with Northern Ireland of Britain together with Northern Republic of Ireland together with European Union could autumn dorsum on the Council of Europe extradition Convention. But equally I receive got noted before, this would hateful far less extradition (and much slower extradition) equally compared to the EAW.

If at that topographic point were a UK/EU deal, Member States may notwithstanding desire to turn down to extradite their ain citizens to the UK, equally they receive got nether the treaty amongst Kingdom of Norway together with Iceland. But fifty-fifty if they are willing to extradite them to the UK, on whatever treaty basis, it may endure arguable on the reason of the novel judgment that they can’t, equally long equally the fugitive tin dismiss endure tried or serve her judgement inwards the remaining EU. And although the United Kingdom of Great Britain together with Northern Ireland of Britain together with Northern Republic of Ireland tin dismiss notwithstanding assist an European Union Member State inwards prosecuting its ain citizens, that volition endure far to a greater extent than expensive for the United Kingdom of Great Britain together with Northern Ireland of Britain together with Northern Republic of Ireland authorities than trying the soul inwards the UK.

Barnard & Peers: chapter 25, chapter 27, chapter 13

JHA4: chapter II:3

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