The European Union’s Court of Justice has ruled that the EU Member States should extradite a citizen of the Union to third countries, who is wanted for serving a sentence, in cases when the Member State fails to convince the third country to let the citizen complete the sentence in its territory.
The judgement has been published on Thursday, December 22, after the Higher Regional Court in Munich took to the Court of Justice the case of a Bosnian citizen, who also had Croatian citizenship, and the same was wanted by the authorities in Bosnia and Herzegovina, to serve a custodial sentence.
While the Court in Munich had concluded that Germany is obliged to extradite this person to BiH under the European Convention on Extradition, it still raises doubts whether the EU law may preclude extradition of EU citizens due to freedom of movement, SchengenVisaInfo.com reports.
And while the German law prohibits the extradition of German nationals to a third country, it usually applies differently when it comes to non-Germans.
“In such circumstances, EU law permits a difference in treatment between Germans and nationals of other Member States who, like the individual concerned, reside permanently in Germany, only if that difference is based on objective considerations and is proportionate to the legitimate objective of national law,” the EU Court’s judgement reads, pointing out what are the doubts of Munich’s Court on the case.
According to the Judgment of the Court of Justice, this person could serve his sentence in Germany, only if authorities in Bosnia and Herzegovina agreed to that, and Germany had the right to try and convince these authorities to do so.
However, in case the authorities in BiH refuse to agree to such an arrangement, Germany is obliged to extradite the individual concerned.
“… if that consent is not obtained, EU law (in this case, the right of Union citizens to move and reside freely within the territory of the Member States and the prohibition on discrimination) does not preclude the requested Member State (Germany) from extraditing the Union citizen concerned pursuant to an international convention,” the Court explains, adding that refusing to extradite a person might result in the same remaining unpunished for his/her criminal acts.
Yet, it points out that in cases when there is a serious risk that the person that is wanted in a third country may be subjected to death penalty, torture or other inhuman or degrading treatment or punishment then the extradition must be ruled out.
The judgement reconfirms a judgement of the Court issued in September 2016, regarding the Petruhhin case, when it introduced an obligation to carry out a consultation procedure between the requested Member State and the Member State of nationality of the EU citizen, to give the latter an opportunity to prosecute its citizen.
The application of the case law has proved difficult in practice, and in June 2020, the Council invited Eurojust and the EJN to analyse the reasons.
A report of the European Union Agency for Criminal Justice Cooperation published back in December 2020 had shown that there are several practical and legal issues when it comes to the extradition of EU citizens to third countries on which the Member States must work on.
In the case the Munich Court had brought to the Court of Justice regarding the BiH citizen, Germany had first contacted Croatia regarding the case of its own national, but had received no response on the matter.
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