When is an extradition decision binding?

Recent case law on double jeopardy as a defence against extradition.

Despite the clear wording in Art. 50 of the Charter and Art. 54 of the CISA, even after successfully fighting extradition in one EU Member State, the decision obtained does not bind another Member State. The person prosecuted faces the risk of (multiple) re-arrests and extradition procedures when entering another Member State. Moreover, currently, it is not possible to challenge a request for extradition or an EAW at EU-level with binding effect on all Member States. In addition, the means of accessing and deleting messages in the Schengen Information System (SIS) and INTERPOL alerts – which themselves can serve as a legal basis for arrest pending extradition – are extremely limited and ineffective, especially because access to those databases is highly dependent on the issuing Member State’s cooperation.

The European Criminal Bar Association (ECBA) has published a statement on 16 May 2022[1] calling for the recognition of extradition decisions. In particular, the Member States were called upon to accept a binding effect of extradition decisions by courts of a Member State in certain scenarios:

• The ECBA paper accepts, that due to a lack of harmonization of the local criminal laws in the Member States, certain decisions cannot have binding effect.
• However, the paper argues that certain judicial decisions have a fundamental and pan-European nature and therefore must be binding on other Member States. This applies to cases of double jeopardy (ne bis in idem) with regard to the acts covered by an SIS or INTERPOL notice. These should be binding upon all Member States. The same applies for judicial decisions refusing extradition on the grounds of Art. 12 of EAW-FD (prosecution based on the grounds of sex, race, religion, ethnic origin, nationality, language, political opinions or sexual orientation) and decisions finding disproportionality of an extradition.
• The paper further argues that certain decisions should at least have a temporary binding effect. The finding by a court of a Member State refusing extradition due to a risk of ill-treatment or a risk of flagrant denial of justice in the requesting state should be recognised across the EU until the requesting State proves that the risk no longer exists.

The aforementioned issues are also reflected in current and recent proceedings before the CJEU as well as local German Courts:

In the proceedings against WS (C-505/19), a German citizen against whom proceedings were terminated in Germany triggering ne bis in idem under Art. 50 of the Charter and Art. 54 of the CISA, the CJEU accepted that WS may not be wanted, arrested or extradited to a non-EU-Member State if a judicial decision exists confirming that the request for extradition from that third country relates to the same facts. To my knowledge, throughout Europe, there is currently no procedure enabling WS to obtain such a decision which binds all Member States. As a consequence, WS would still risk arrest and extradition when entering another Member State.

In the most recent case (C-435/22 PPU, HF), the Munich Higher Regional Court raised the question, whether Article 54 of the CISA in conjunction with Article 50 of the Charter prohibit the extradition of a third-country national to a non-EU-country.

The arrested individual – a Serb national – had already been tried and convicted in Slovenia. In the case at hand, the Slovenian courts had not only convicted the individual in 2012 but had also declared a later extradition request from the United States in 2018 inadmissible. When refusing extradition, the Slovenian court argued partially on the basis of ne bis in idem and further argued that the US had failed to describe an offence punishable under Slovenian law. Now, the United States are seeking extradition of the same person from Germany based on the same indictment that formed that basis of the earlier extradition request to Slovenia which referred to the offences named in the initial Slovenian judgment.

Following the ECJ in WS (C-505/19) at least the first part should have been binding upon the Munich court. However, the Munich Higher Regional Court argued that WS only referred to arrest and the wanted notice but not the extradition. In addition, the court argued that WS does not relate to foreign nationals but only to EU-citizens aiming to exercise their right under Art. 21 of the TFEU. Due to this second aspect, the decision could be of particular relevance for UK-citizens who could – according to the Munich court – no longer enjoy the protection of Art. 50 of the Charter. This view, however, would disregard the clear and unambiguous wording of Art. 50 of the Charter and 54 of the CISA since both constitute an independent judicial guarantee rather than an annex to Art. 21 of the TFEU.

In his opinion from 13 October 2022, the Advocate General strongly argued that the principle of ne bis in idem should apply and stop extradition in a case like HF.

In its decision of 28 October 2022, the Grand Chamber of the ECJ provided a very clear ruling whereby Art. 54 of the CISA and Art. 50 of the Charter not only prevent another criminal conviction within the EU but also extradition to a non-EU-Member State. In addition, the court clarified that Art. 54 of the CISA and Art. 50 of the Charter also protect non-EU-citizens irrespective of their immigration status.

Referring to the WS-decision, the Grand Chamber sets out that the principle of mutual trust requires authorities of one Member State to accept a final decision issued by another Member State exactly as it has been notified to them. Without such trust, the fundamental principle of mutual trust and recognition as a fundamental principle of EU law would be put at stake. The Court further ruled that bilateral treaties have to be interpreted in a way so as to ensure the protection guaranteed under Art. 54 of the CISA and Art. 50 of the Charter.

While further clarification on the extent of the binding effect is needed, the decision is a further significant step towards a common understanding on the effect of Art. 54 of the CISA and Art. 50 of the Charter in extradition decisions.

This is particularly important since it appears that the courts in EU Member States are treating the relevant questions differently. While only most recently, the Portuguese Supreme Court accepted the binding effect of an extradition decision from 3.08.2022 (file reference nº 157/21.7YRCBR.S1), the Higher Regional Court of Braunschweig (Germany) refused to accept a non-extradition-decision by a Polish Court (Higher Regional Court Braunschweig 1. Senate, Decision from 16.09.2022, File Reference 1 AR (Ausl.) 17/22, ECLI:DE:OLGBS:2022:0916.1AR.AUSL.17.22.00).

ABOUT THE AUTHOR

This article was written by guest author Sören Schomburg.