I.N. - Ruska Federacija

On 2 April 2020, the Grand Chamber of the Court of Justice delivered its judgment in case C‑897/19 PPU, concerning the interpretation of Article 18 TFEU and the Agreement between the EU and Iceland and Norway on the surrender procedure between the Member States and the two EFTA States (Agreement on surrender proceedings). The ruling defines the obligations of a Member State in the case of a request of extradition from a third country targeting a national of an EFTA State.

I.N. is a Russian national who acquired the Icelandic nationality on 19 June 2019, after having been granted the status of refugee in that country on 8 June 2015. Iceland is an EFTA State and is party to the Agreement on the European Economic Area (Agreement on the European Economic Area). On 30 June 2019 I.N. was arrested by the Croatian authorities while on holiday, in execution of an international wanted persons notice issued on 20 May 2015 by Interpol’s Bureau in Moscow. On 6 August 2019, the Russian authorities sent a request of extradition for I.N., in accordance with the provisions of the European Convention on Extradition. Since no extradition treaty exists between Croatia and Russia, the Croatian constitution precludes extradition of its own nationals, but not non-nationals. The embassy of Iceland forwarded a note from the Icelandic Government asking that I.N. be guaranteed safe passage to Iceland with a minimum of delay.

On 30 September 2019, I.N. lodged an appeal to the Supreme Court of Croatia, challenging the decision of the County Court of Zagreb to execute the request of extradition to Russia. I.N. stated that in case of extradition there would be a concrete risk of being subjected to torture and inhuman and degrading treatment. In the appeal, he stated that his status as refugee in Iceland had been recognized taking into account precisely the specific criminal proceedings in Russia upon which the request of extradition is based.

The Supreme Court of Croatia, before examining whether there is a real risk of I.N.’s fundamental rights being violated by his extradition to Russia, refers a request for a preliminary ruling in order to know whether it has the obligation to inform Iceland about Russia’s request of extradition so that that State can seek the surrender of I.N. The referring court, in essence, asks whether the principles set in the Petruhhin case oblige to interpret EU law, including the EEA Agreement, as meaning that when a Member State, to which a national of an EFTA State has moved, receives an extradition request from a third State, it must inform that EFTA State of that request and, in the case of a request, surrender that national in accordance with the Agreement on surrender proceedings in order to prosecute that person for offences and avoid impunity.

Upon request of the referring court, the case was dealt with under the urgent preliminary ruling procedure. The case was assigned to the Grand Chamber, which replied in the positive to the question referred by the referring court. The Court firstly starts its arguments with some preliminary considerations on the question referred, then examines the applicability of EU law in the case at issue, and finally assesses the possible justifications to the restriction on the freedom to provide services.

The Court begins its reasoning recalling the Petruhhin case, where it was established that “Articles 18 and 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” through a European Arrest Warrant (para. 37). According to that ruling, the surrender has to be granted under the condition that the Member State has jurisdiction to prosecute its national for the offences committed abroad.

The Court considers whether the rules set in Petruhhin apply not only to EU citizens, but also to Icelandic nationals. The Court observes that the prohibition of “any discrimination on grounds of nationality,” referred to in Article 18 TFEU, is not intended to apply to cases of a possible difference in treatment between nationals of Member States and those of third States (para. 40). Nonetheless, as Iceland applies the Schengen acquis and is party to the EEA Agreement, the Court notes that in order to ascertain whether the Petruhhin principles may apply to the main proceedings, it is necessary to take into consideration not only the relevant European law norms, but also the EEA Agreement and its interpretation.

Referring to the applicability of EU law to the case at hand, the Court observes that when there is no extradition convention between the EU and a third State, the matter falls within the competence of the Member States, but the latter are required to exercise that competence in accordance with EU law. At the same time, as an international agreement concluded by the EU, the EEA Agreement is, in principle, governed by EU law. In that perspective, it is for the Court to “ensure that the rules of the EEA Agreement which are identical in substance to those of the FEU Treaty are interpreted uniformly within the Member States” (para. 50). The fact that I.N. entered Croatia in order to take his holiday there falls within the freedom for the recipients of services to go to another Member State in order to receive a service, as referred to in Article 36 of the EEA Agreement. This provision, according to the Court, must be given the same interpretation as Article 56 TFEU. It follows from the foregoing that Croatia, in the case at hand, is “obliged to exercise its competence in respect of extradition to third States in a manner that complies with the EEA Agreement, in particular Article 36 thereof ensuring the freedom to provide services” (para. 54).

In the last part of its reasoning, the Court analyses the possible justifications for the restriction on the freedom to provide services. The Grand Chamber underscores that the unequal treatment, established by the Croatian law, allowing in cases as the one at hand for the extradition of an EFTA national but not a Croatian national, gives rise to a restriction of the freedom enshrined in Article 36 of the EEA Agreement. The Court admits such restriction “only where it is based on objective considerations and is proportionate to the legitimate objective of the national provisions” (para. 59). Preventing impunity through the extradition of people who have committed an offence, continues the Court, must be considered legitimate. However, a restriction of the freedom laid down in Article 36 of the EEA Agreement can be justified only by measures that are proportioned and necessary to the aim they seek to attain, therefore only if the objective cannot be attained by less restrictive measures.

The applicability of EU law to the case at issue entails that the provisions of Article 19(2) of the Charter, prohibiting the extradition to a State where there is a serious risk that the person would be subjected to inhuman or degrading treatment, are applicable to Russia’s request for the extradition of I.N. Therefore, according to the Court, if I.N. invokes a concrete risk of inhuman or degrading treatment if extradited, the Croatian court must verify, before carrying out that extradition, whether the extradition may prejudice the rights referred to in Article 19(2) of the Charter. The Grand Chamber states that, for the purposes of that verification, the referring court must take into consideration the fact that I.N. was granted asylum by Iceland on the ground of the risks of suffering inhuman and degrading treatment in his country of origin in reference to the specific proceedings that originated the extradition request. The Court specifies that “the existence of a decision of the Icelandic authorities granting that person asylum must thus lead the competent authority of the requested Member State, such as the referring court, to refuse extradition, pursuant to application of Article 19(2) of the Charter” (para. 68).

In case the referring court considers that Article 19(2) of the Charter does not preclude the execution of the extradition request, the Grand Chamber adds that it will remain necessary to examine whether an alternative and less prejudicial means exists, such as a surrender on I.N. to Iceland for prosecution, which allows to effectively avoid impunity. The Court therefore states that the ruling adopted in Petruhhin must be applied by analogy to the case at hand, considering the proximity of the legal systems of EFTA States to those of Member States, the degree of mutual confidence expressed in the preamble of the Agreement on the surrender procedure, and their capacity to guarantee a fair trial.

Therefore, the Court concludes that, given the existence of a surrender agreement between an EFTA State and the European Union, when a national of that EFTA State, who was granted asylum by the same State before acquiring the nationality, has moved to a Member State and the latter receives an extradition request from a third State pursuant to the European Convention on Extradition, it is for the competent authority of the Member State to verify that the extradition would not infringe the rights covered by Article 19(2) of the Charter. The grant of asylum must be a particularly substantial piece of evidence in the context of that verification. In any event, before considering executing the request for extradition, the requested Member State is obliged to inform the EFTA State and, upon request of that state, surrender the person to it, in accordance with the provisions of the surrender agreement, provided that that State has jurisdiction to prosecute that person for the offences committed abroad.