Denis Raugevicius.
Date: 2018-11-13
21


The Korkein oikeus (Supreme Court) considers that it is a ‘court or tribunal’ for the purposes of the Court’s case-law relating to Article 267 TFEU, even where its involvement is to provide an opinion in connection with an extradition request. It states that it meets the criteria pertaining to that concept, which were recalled by the Court, inter alia, in its judgment of 19 December 2012, Epitropos tou Elegktikou Synedriou (C‑363/11, EU:C:2012:825, paragraph 18), given that it is established by law, is permanent, its jurisdiction is compulsory, its procedure is inter partes, it applies rules of law and is independent. Furthermore, it is dealing with a dispute, in that Mr Raugevicius has contested his extradition and the Ministry of Justice has not taken the view that the request from the Russian Federation should be rejected immediately. Finally, the Korkein oikeus (Supreme Court) adds that the opinion which it must give is binding in that the extradition request at issue cannot be granted if it were to find that there is an obstacle to the extradition sought.
27


In that regard, it should be recalled that an EU citizen, such as Mr Raugevicius, a national of a Member State, namely Lithuania, who moved to another Member State, namely the Republic of Finland, made use of his right to move freely, so that his situation falls within the scope of Article 18 TFEU, which lays down the principle of non-discrimination on grounds of nationality (see, to that effect, judgment of 6 September 2016, Petruhhin, C‑182/15, EU:C:2016:630, paragraph 31).
28


Furthermore, a national rule which prohibits only Finnish nationals from being extradited introduces a difference in treatment between those nationals and nationals of other Member States. In so doing, such a rule gives rise to unequal treatment that is liable to affect the freedom of nationals of other Member States to move within the European Union (see, to that effect, judgment of 6 September 2016, Petruhhin, C‑182/15, EU:C:2016:630, paragraph 32).
29


The fact that a national of a Member State other than the Member State to which the extradition request was made, such as Mr Raugevicius, also holds the nationality of the third country which made that request does not invalidate that conclusion. 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 (see, to that effect, judgment of 7 July 1992, Micheletti and Others, C‑369/90, EU:C:1992:295, paragraph 15).
30


It follows that, in a situation such as the one in the main proceedings, unequal treatment which allows the extradition of an EU citizen who is a national of another Member State, such as Mr Raugevicius, gives rise to a restriction on the freedom of movement, within the meaning of Article 21 TFEU (judgment of 6 September 2016, Petruhhin, C‑182/15, EU:C:2016:630, paragraph 33).
31


Such a restriction can be justified only where it is based on objective considerations and is proportionate to the legitimate objective of the national provisions (judgment of 6 September 2016, Petruhhin, C‑182/15, EU:C:2016:630, paragraph 34 and the case-law cited).
32


In that regard, the Court has accepted that preventing the risk of impunity for persons who have committed an offence must be regarded as a legitimate objective and may justify a restrictive measure, provided that it is necessary for the protection of the interests which it is intended to guarantee and in so far as those objectives cannot be attained by less restrictive measures (judgment of 6 September 2016, Petruhhin, C‑182/15, EU:C:2016:630, paragraphs 37 and 38).
37


That applies in particular to the Convention on the Transfer of Sentenced Persons of 21 March 1983 to which all Member States, like the Russian Federation, are parties. That convention allows a person who has been sentenced in the territory of a State which is a signatory to that convention to apply under Article 2 to be transferred to the territory of his country of origin in order to serve the sentence imposed on him, and the recitals of that convention state that the aim of such a transfer is, inter alia, to further the social rehabilitation of sentenced persons by allowing foreigners who are deprived of their liberty as a result of their commission of a criminal offence to serve their sentences within their own society (see, to that effect, judgment of 20 January 2005, Laurin Effing, C‑302/02, EU:C:2005:36, paragraphs 12 and 13).
40


As was recalled in paragraph 33 above, given that extradition is intended to prevent the risk of impunity for nationals of Member States other than the requested Member State, where the national legislation at issue in the main proceedings makes it possible to extradite nationals of Member States other than the Republic of Finland, it is necessary to examine the proportionate nature of that legislation by ascertaining whether there are measures which are equally effective in achieving that objective but which are less prejudicial to the freedom of movement of those nationals (judgment of 6 September 2016, Petruhhin, C‑182/15, EU:C:2016:630, paragraph 41) by taking into account all the factual and legal circumstances of the case.
43


In that regard, it must be recalled that, in accordance with settled case-law, citizenship of the Union is intended to be the fundamental status of nationals of the Member States (see, inter alia, judgments of 20 September 2001, Grzelczyk, C‑184/99, EU:C:2001:458, paragraph 31; of 8 March 2011, Ruiz Zambrano, C‑34/09, EU:C:2011:124, paragraph 41, and of 5 June 2018, Coman and Others, C‑673/16, EU:C:2018:385, paragraph 30).
44


Every Union citizen may therefore rely on the prohibition of discrimination on grounds of nationality laid down in Article 18 TFEU in all situations falling within the scope ratione materiae of EU law, and those situations include, as in the dispute in the main proceedings, the exercise of the freedom conferred by Article 21 TFEU to move and reside within the territory of the Member States (see judgments of 4 October 2012, Commission v Austria, C‑75/11, EU:C:2012:605, paragraph 39, and of 11 November 2014, Dano, C‑333/13, EU:C:2014:2358, paragraph 59).
45


In addition, although, in the absence of EU legal provisions on the extradition of nationals of Member States to Russia, Member States retain the power to adopt such provisions, those Member States are required to exercise that power in accordance with EU law, in particular, the prohibition on discrimination laid down in Article 18 TFEU and the freedom to move and reside within the territory of the Member States guaranteed by Article 21(1) TFEU.
46


In view of the aim of preventing the risk of impunity, Finnish nationals, on the one hand, and, on the other, nationals of other Member States who reside permanently in Finland and demonstrate a certain degree of integration into that State’s society are in a comparable situation (see, by analogy, judgment of 6 October 2009, Wolzenburg, C‑123/08, EU:C:2009:616, paragraph 67). It is for the referring court to establish whether Mr Raugevicius falls within that category of nationals of other Member States.
49


It must also be stated that, in the event that the requested Member State intends to extradite a national from another Member State at the request of a third country, the first Member State must check that the extradition will not infringe the rights guaranteed by the Charter of Fundamental Rights of the European Union, in particular Article 19 (see, to that effect, judgment of 6 September 2016, Petruhhin, C‑182/15, EU:C:2016:630, paragraph 60).