Mutual recognition, extradition to third countries and Union citizenship: Petruhhin

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Series Details Volume 54, Number 6, Pages 1781-1797
Publication Date November 2017
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The principle of mutual recognition has become a key element of the Area of Freedom, Security and Justice and the cornerstone of judicial cooperation in criminal matters (Arts. 67(3) and 82(1) TFEU). The European arrest warrant is the first instrument that implemented the principle of mutual recognition and thereby replaced the traditional treaty-based extradition regime among EU Member States. Under the new paradigm of mutual recognition, several traditional obstacles to extradition have been abolished (e.g. the exceptions for political, military and fiscal offences) or restricted (double criminality requirement). In particular, the Framework Decision has done away with the ban on extradition of own nationals that is deeply rooted in the constitutions of various Member States.

Nevertheless, the executing Member State may subject the surrender of own nationals to the condition that the surrendered person is returned to his home country in order to serve the sentence there. This privilege, however, does not only apply to nationals, but also to residents of the executing Member State, and the Court has emphasized that the principle of non-discrimination (Art. 18 TFEU) prohibits the national legislature from limiting the scope of the corresponding refusal ground to its own nationals. On the other hand, extradition to non-Member States is still subject to the international treaty framework that provides for an obstacle to extradition based on the nationality of the requested person. Even though the ban on extradition of nationals to third countries has not been affected by the European arrest warrant, it raises similar concerns as to its compatibility with the prohibition of discrimination on grounds of nationality.

In Petruhhin the Court had to rule on whether Member States were still allowed to limit the scope of this exception to their own nationals or whether they were obliged to extend the protection from extradition to nationals of other Member States (i.e. to all EU citizens).

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