Aleksei Petruhhin v Latvijas Republikas Ģenerālprokuratūra.
Date: 2016-09-06
18


According to settled case-law, the procedure provided for by Article 267 TFEU is an instrument of cooperation between the Court of Justice and the national courts, by means of which the Court provides the national courts with the points of interpretation of EU law which they need in order to decide the disputes before them (see, in particular, judgment of 6 October 2015 in Capoda Import-Export, C‑354/14, EU:C:2015:658, paragraph 23 and the case-law cited).
19


In the context of that cooperation, it is solely for the national court, before which the dispute has been brought and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of EU law, the Court is, in principle, bound to give a ruling (see, in particular, judgment of 6 October 2015 in Capoda Import-Export, C-354/14, EU:C:2015:658, paragraph 24 and the case-law cited).
20


It follows that questions on the interpretation of EU law referred by a national court in the factual and legislative context which that court is responsible for defining, and the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance. The Court may refuse to rule on a question referred by a national court only where it is quite obvious that the interpretation of EU law that is sought is unrelated to the actual facts of the main action or its object, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see, in particular, judgment of 6 October 2015 in Capoda Import-Export, C-354/14, EU:C:2015:658, paragraph 25 and the case-law cited).
27


Nonetheless, in situations covered by EU law, the national rules concerned must have due regard to the latter (see judgment of 2 March 2010 in Rottmann, C‑135/08, EU:C:2010:104, paragraph 41 and the case-law cited).
29


By prohibiting ‘any discrimination on grounds of nationality’, Article 18 TFEU requires that persons in a situation falling within the scope of application of the Treaties be treated equally (see, to that effect, judgment of 2 February 1989 in Cowan, 186/87, EU:C:1989:47, paragraph 10).
30


In the present case, although, as has been stated in paragraph 26 above, the rules on extradition fall within the competence of the Member States where there is no international agreement between the European Union and the third country concerned, it must, however, be recalled that, in order to determine the scope of application of the Treaties within the meaning of Article 18 TFEU, that article must be read in conjunction with the provisions of the FEU Treaty on citizenship of the Union. The situations falling within their scope of application include, therefore, those involving the exercise of the freedom to move and reside within the territory of the Member States, as conferred by Article 21 TFEU (see, to that effect, judgment of 15 March 2005 in Bidar, C‑209/03, EU:C:2005:169, paragraphs 31 to 33 and the case-law cited).
31


In the main proceedings, Mr Petruhhin, an Estonian national, made use, in his capacity as a Union citizen, of his right to move freely within the European Union by moving to Latvia, so that the situation at issue in the main proceedings falls within the scope of application of the Treaties, within the meaning of Article 18 TFEU, which sets out the principle of non-discrimination on grounds of nationality (see, to that effect, judgment of 2 February 1989 in Cowan, 186/87, EU:C:1989:47, paragraphs 17 to 19).
32


However, national rules on extradition such as those at issue in the main proceedings give rise to a difference in treatment depending on whether the person concerned is a national of the Member State in question or a national of another Member State, in that they result in nationals of other Member States, such as Mr Petruhhin, not being granted the protection against extradition enjoyed by nationals of the Member State in question. In so doing, such rules are liable to affect the freedom of nationals of other Member States to move within the European Union.
33


It follows that, in a situation such as that at issue in the main proceedings, the unequal treatment which allows the extradition of a Union citizen who is a national of another Member State, such as Mr Petruhhin, gives rise to a restriction of freedom of movement, within the meaning of Article 21 TFEU.
34


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 (see, in particular, judgment of 12 May 2011 in Runevič-Vardyn and Wardyn, C‑391/09, EU:C:2011:291, paragraph 83 and the case-law cited).
36


In that respect, it must be noted that, under Article 3(2) TEU, the European Union offers its citizens an area of freedom, security and justice without internal frontiers, in which the free movement of persons is ensured in conjunction with appropriate measures with respect to external border controls and the prevention and combating of crime.
37


The objective of preventing the risk of impunity for persons who have committed an offence is to be seen in that context (see, to that effect, judgment of 27 May 2014 in Spasic, C‑129/14 PPU, EU:C:2014:586, paragraphs 63 and 65) and, as the Advocate General has observed in point 55 of his Opinion, must be considered a legitimate objective in EU law.
38


However, measures which restrict a fundamental freedom, such as that laid down in Article 21 TFEU, may be justified by objective considerations only if they are necessary for the protection of the interests which they are intended to secure and only in so far as those objectives cannot be attained by less restrictive measures (see judgment of 12 May 2011 in Runevič-Vardyn and Wardyn, C‑391/09, EU:C:2011:291, paragraph 88 and the case-law cited).
39


As the Advocate General has observed in point 56 of his Opinion, extradition is a procedure whose aim is to combat the impunity of a person who is present in a territory other than that in which he has allegedly committed an offence. As several national governments have noted in their observations to the Court, although, in the light of the maxim ‘aut dedere, aut judicare’ (either extradite or prosecute), the non-extradition of its own nationals is generally counterbalanced by the possibility for the requested Member State to prosecute such nationals for serious offences committed outside its territory, that Member State as a general rule has no jurisdiction to try cases concerning such acts when neither the perpetrator nor the victim of the alleged offence is a national of that Member State. Extradition thus allows offences committed in the territory of a State by persons who have fled that territory not to remain unpunished.
40


In that context, national rules, such as those at issue in the main proceedings, which allow an extradition request to be granted for the purposes of prosecution and judgment in the third State where the offence is alleged to have been committed appear appropriate to achieve the objective pursued.
41


It must, however, be ascertained whether there is an alternative measure less prejudicial to the exercise of the rights conferred by Article 21 TFEU which would be equally effective in achieving the objective of preventing the risk of impunity for a person alleged to have committed a criminal offence.
42


In that regard, it should be noted that, in accordance with the principle of sincere cooperation set out in the first subparagraph of Article 4(3) TEU, the European Union and the Member States are, in full mutual respect, to assist each other in carrying out tasks which flow from the Treaties.
43


In the criminal law context, the EU legislature has, inter alia, adopted Framework Decision 2002/584 which seeks to facilitate judicial cooperation by introducing the European arrest warrant. That warrant is the first concrete measure in the field of criminal law implementing the principle of mutual recognition, which the European Council has referred to as the ‘cornerstone’ of judicial cooperation (judgment of 1 December 2008 in Leymann and Pustovarov, C‑388/08 PPU, EU:C:2008:669, paragraph 49). In addition to that judicial cooperation mechanism which the European arrest warrant constitutes, there are also numerous instruments of mutual assistance intended to facilitate such cooperation (see, to that effect, judgment of 27 May 2014 in Spasic, C‑129/14 PPU, EU:C:2014:586, paragraphs 65 to 68).
47


In the absence of rules of EU law governing extradition between the Member States and a third State, it is necessary, in order to safeguard EU nationals from measures liable to deprive them of the rights of free movement and residence provided for in Article 21 TFEU, while combatting impunity in respect of criminal offences, to apply all the cooperation and mutual assistance mechanisms provided for in the criminal field under EU law.
48


Consequently, in a case such as that at issue in the main proceedings, the exchange of information with the Member State of which the person concerned is a national must be given priority in order to afford the authorities of that Member State, in so far as they have jurisdiction, pursuant to their national law, to prosecute that person for offences committed outside national territory, the opportunity to issue a European arrest warrant for the purposes of prosecution. Article 1(1) and (2) of Framework Decision 2002/584 does not preclude, in such a case, the possibility for the Member State of which the alleged offender is a national of issuing a European arrest warrant with a view to the surrender of that person for the purposes of prosecution.
49


In cooperating accordingly with the Member State of which the person concerned is a national and giving priority to that potential arrest warrant over the extradition request, the host Member State acts in a manner which is less prejudicial to the exercise of the right to freedom of movement while avoiding, as far as possible, the risk that the offence prosecuted will remain unpunished.
50


The answer to the first two questions is, therefore, that Article 18 TFEU and Article 21 TFEU must be interpreted as meaning that, when a Member State to which a Union citizen, a national of another Member State, has moved receives an extradition request from a third State with which the first Member State has concluded an extradition agreement, it must inform the Member State of which the citizen in question is a national and, should that Member State so request, surrender that citizen to it, in accordance with the provisions of Framework Decision 2002/584, provided that that Member State has jurisdiction, pursuant to its national law, to prosecute that person for offences committed outside its national territory.
52


As is apparent from the answer to the first two questions, the decision of a Member State to extradite a Union citizen, in a situation such as that of the main proceedings, comes within the scope of Article 18 TFEU and Article 21 TFEU and, therefore, of EU law for the purposes of Article 51(1) of the Charter (see, to that effect, by analogy, judgment of 26 February 2013 in Åkerberg Fransson, C‑617/10, EU:C:2013:105, paragraphs 25 to 27).
56


In that regard, reference must be made to Article 4 of the Charter which prohibits inhuman or degrading treatment or punishment and it should be noted that that prohibition is absolute in that it is closely linked to respect for human dignity, the subject of Article 1 of the Charter (see judgment of 5 April 2016 in Aranyosi and Căldăraru, C‑404/15 and C‑659/15 PPU, EU:C:2016:198, paragraph 85).
58


It follows that, in so far as the competent authority of the requested Member State is in possession of evidence of a real risk of inhuman or degrading treatment of individuals in the requesting third State, it is bound to assess the existence of that risk when it is called upon to decide on the extradition of a person to that State (see, to that effect, as regards Article 4 of the Charter, judgment of 5 April 2016 in Aranyosi and Căldăraru, C‑404/15 and C‑659/15 PPU, EU:C:2016:198, paragraph 88).
59


To that end, the competent authority of the requested Member State must rely on information that is objective, reliable, specific and properly updated. That information may be obtained from, inter alia, judgments of international courts, such as judgments of the ECtHR, judgments of courts of the requesting third State, and also decisions, reports and other documents produced by bodies of the Council of Europe or under the aegis of the United Nations (see, to that effect, judgment of 5 April 2016 in Aranyosi and Căldăraru, C‑404/15 and C‑659/15 PPU, EU:C:2016:198, paragraph 89).
60


The answer to the third question is, therefore, that where a Member State receives a request from a third State seeking the extradition of a national of another Member State, that first Member State must verify that the extradition will not prejudice the rights referred to in Article 19 of the Charter.