8.6.2022
EN
Official Journal of the European Union
C 223/13
Reasoning and reply of the Court of Justice
The Court of Justice applied by analogy the reasoning of the Petruhhin judgment, by stating that a national of a Member State who moved to another Member State made use of his right to move freely within the Union and therefore falls under the scope of Article 18 TFEU.
Holding dual nationality of a Member State and a third State cannot deprive the person concerned of the freedoms he derives from EU law as a national of a Member State.
A national rule which prohibits only own nationals from being extradited introduces a difference in treatment between those nationals and nationals of other Member States and gives rise to a restriction of free movement within the meaning of Article 21 TFEU: such a restriction must be necessary and proportionate in relation to the legitimate objective of preventing the risk of impunity for nationals of Member States other than the requested Member State, and there should not be less intrusive measures to attain that objective, taking into account all the factual and legal circumstances of the case.
However, the Court of Justice acknowledged that in cases of extradition requests for the purpose of execution of a sentence, the conflict with the principle of non-discrimination cannot be settled by giving the possibility to the Member State of nationality to exercise its jurisdiction in prosecuting the person concerned anew since such fresh prosecution of a person who has already been tried and sentenced may be contrary to the principle of ne bis in idem.
In order to prevent the risk of impunity of persons in such situations, the Court of Justice referred to other mechanisms of national and international law which make it possible for those persons to serve their sentences, for example, in their State of origin, thereby increasing their chances of social reintegration after they have completed their sentences.
In this context, the Court of Justice observed that Article 3 of the Finnish Law on International Cooperation provides foreigners who permanently reside in Finland with the possibility to serve a sentence of imprisonment imposed by a third State in Finland, provided that both the person concerned and the third State consent to this.
Therefore, the Court of Justice also observed that Mr Raugevicius could serve the sentence which he received in Russia in Finland, provided that both Russia and Mr Raugevicius himself consented to this.
The Court of Justice held that nationals of the requested Member State, on the one hand, and nationals of other Member States who reside permanently in the requested Member State and demonstrate a certain degree of integration into that State’s society, on the other hand, are in a comparable situation.
It is for the authorities of the requested State to establish whether such link between the nationals of other Member States and the requested Member State exists.
In the affirmative, Articles 18 and 21 TFUE require that nationals of other Member States may, under the same conditions as nationals of the requested Member State, serve their sentence on the territory of the requested Member State.
The Court of Justice therefore concluded that Articles 18 and 21 TFEU must be interpreted as meaning that, where an extradition request has been made by a third State for an EU citizen who has exercised his right to free movement, not for the purpose of prosecution, but for the purpose of enforcing a custodial sentence, the requested Member State, whose national law prohibits the extradition of its own nationals for the purpose of enforcing a sentence and makes provision for the possibility that such a sentence pronounced abroad may be served on its territory, is required to ensure that that EU citizen, provided that he resides permanently in its territory, receives the same treatment as that accorded to its own nationals in relation to extradition.
C-237/21 Generalstaatsanwaltschaft München [currently pending case]
Facts of the case
The case is based on the request for extradition from Bosnia-Herzegovina to Germany regarding S.M. for the purpose of enforcing a custodial sentence.
The person whose surrender is sought is a citizen of Serbia, Bosnia-Herzegovina and Croatia, who has lived in Germany with his wife since mid-2017 and who has been working in Germany since May 2020.
The Generalstaatsanwaltschaft München (Public Prosecution Service, Munich), referring to the judgment in Raugevicius, requested to find that the extradition of the person whose surrender is sought is inadmissible.