Denis Raugevicius

On 13 November 2018, the Grand Chamber of the Court of Justice delivered its judgment in case C-247/17 on the extradition of EU citizens to third countries. As in Petruhhin, to which the Court often refers in its reasoning, the case concerns a request for extradition issued by Russian authorities and concerning an EU citizen who has exercised his right to freely move within the EU.

Mr Raugevicius is a Lithuanian national who has moved to Finland and has lived there for several years. He is also father to two children residing in Finland and having Finnish nationality. In 2011, he was convicted by Russian authorities, which subsequently issued an international arrest warrant. In 2016, a court of first instance in Finland imposed an order prohibiting Mr Raugevicius from leaving Finland. In order to decide on the request for extradition issued by Russian authorities, the Finnish Ministry of Justice asked for an opinion of the Supreme Court of Finland, which in turn referred a request for preliminary ruling to the Court of Justice. The Finnish Court points out that: i) Mr Raugevicius is an EU citizen who has exercised his right to free movement within the EU; ii) the request for extradition has been issued for the purpose of executing a custodial sentence (and not of prosecuting, as it was the case in Petruhhin); iii) Finnish law prohibits the extradition of own nationals to third countries for the purposes of the enforcement of a sentence; and iv) Finnish law allows the execution of a sentence pronounced abroad on Finnish territory. The Supreme Court of Finland inquires whether it should ascertain whether there is an alternative to extradition that is less prejudicial to the exercise of the right to free movement. The Court of Justice replies in the affirmative.

The Court of Justice recalls its previous judgment in Petruhhin, where it argued that – in general – extradition aims to ensure that persons suspected of having committed a crime do not enjoy impunity. The fact that some Member States prohibit the extradition of own nationals is in line with this objective: in accordance with the principle aut dedere aut iudicare, the bar on the extradition of own nationals is usually counterbalanced by the obligation of a Member State to prosecute its citizens for the crimes committed abroad. This may not be possible when the extradition concerns a citizen of another Member State. However, in Petruhhin, the Court noted that there was an alternative to the extradition of EU nationals living in a Member State other than that of their nationality to third countries. Pursuant to the Framework Decision on the European Arrest Warrant, the person whose extradition was sought by a third country may be first surrender to the country of his or her nationality to be prosecuted there.

However, in the case at hand, there is already a foreign conviction, so that the principle aut dedere aut iudicare would not apply. Member States could not prosecute again the same person for the same facts, as this would violate the principle of ne bis in idem. Nonetheless, the Grand Chamber notes that there are already some mechanisms that make it possible for persons subject to an extradition request for the purpose of enforcing a sentence to serve their sentences in the State of which they are national. This is for instance the case of the Convention on the Transfer of Sentenced Persons, in which Russia participates as well. In addition, Finnish legislation provides that its own nationals can serve a sentence pronounced in another State in its territory.

Against this backdrop, it must be assessed whether extradition of Mr Raugevicius to Russia is the only option or whether there are measures which are equally effective in achieving the objective of extradition (i.e. preventing the risk of impunity) and which are at the same time less prejudicial to his freedom of movement. The Court of Justice notes that Article 3 of the Finnish Law on international cooperation for the enforcement of certain criminal law sanctions allows Finnish nationals and foreign nationals permanently residing in Finland to serve in Finland a sentence pronounced abroad, if they agree to this. Hence, the Court argues, it is clear that Mr Raugevicius could serve the Russian sentence in Finland, provided that both Russia and Mr Raugevicius himself consent to this, and provided that competent national courts establish that Mr Raugevicius can be considered as a foreign national permanently residing in Finland.

The Court emphasises that each EU citizen should enjoy the right to non-discrimination on grounds of nationality as enshrined in Article 18 TFEU in all situations falling within the scope of EU law, such as when he or she has exercised the right to free movement (Article 21 TFEU). As the aim of extradition is to prevent the risk of impunity, Finnish nationals and nationals of other Member States residing permanently in Finland are in a comparable situation. As it did also in Petruhhin, the Court finally notes that, should Finnish authorities eventually decide to extradite Mr Raugevicius to Russia, they must check that the extradition will not infringe the rights guaranteed by the Charter, and especially Article 19 thereof (prohibition of extradition to a State where there is a serious risk that the extradited person would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment).

The Court thus concludes that Articles 18 and 21 TFEU must be interpreted as meaning that, where an extradition request has been made by a third country 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 out of the EU 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.