In the case of an extradition request from a third country of a citizen of an EU country who is in the European Union but outside the territory of the state of nationality, the mechanism of cooperation between the states of the European Union requires an exchange of information with the member state of which the person concerned is a national, in order to provide the authorities of that state, provided that they are competent under their national law to prosecute that person for acts committed outside the national territory, with the opportunity to issue a European arrest warrant for the purpose of prosecution.
On the subject N. Canestrini, EUROPEAN CITIZENSHIP AND EXTRADITION TO THIRD STATES: OBLIGATIONS AND LIMITS FOR MEMBER STATES IN THE JURISPRUDENCE OF THE COURT OF JUSTICE, in Cassazione penale, 5/2021.
(automatic machine translation, original here).
SUPREME COURT OF CASSATION
SIXTH CRIMINAL SECTION
Judgment
Number: 21955, ud. May 16, 2024 - filed May 31, 2024
President: G. De Amicis, Rapporteur: P. Di Geronimo
IN FACT
1. The Court of Appeals of Rome declared the existence of the conditions for the extradition of the appellant to the United States, thereby granting the request for surrender made in relation to the crime of child abduction committed on July 1, 2018, on the basis of the Extradition Treaty Treaty between Italy and the U.S., ratified by Law No. 222 of May 26, 1984.
2. Against this judgment, the appellant brought a single ground of appeal for violation of law, representing that he is a French citizen and complaining about the failure to notify France of the extradition procedure as a member state of the European Union, resulting in the infringement of the prerogatives associated with citizenship.
After recalling the CJEU ruling in the Petruhhin case and subsequent compliant ones, the defense argues that the obligation to communicate the extradition procedure is directly related to the provision, under French law, of the prohibition of extradition of the citizen.
Failure to comply with the communication, therefore, would have prevented the French state from making a possible request for the extradite's surrender, in order to deny the subsequent transfer to the third state, in application of the aforementioned prohibition.
The appellant censures the judgment under appeal insofar as it held that the notification mechanism, outlined by the "Petruhhin" judgment, must apply in the sole case in which the requested State opposes the exception relating to nationality and not also, as in the case at hand, in the reverse hypothesis, in which the aforementioned exception is provided for in the legal system of the State of nationality of the extradite and not in that of the State requested to provide for the surrender.
3. The appeal was dealt with in a paper form.
CONSIDERED IN LAW
1. The appeal is well-founded and should be allowed for the reasons set out below.
2. The appellant raises a specific question, having to determine whether or not the notification mechanism described in the CJEU judgment of September 6, 2016, Petruhhin, C-182/15, is applicable in the hypothesis that the Member State of the European Union, whose surrender is requested on the basis of the extradition treaty existing with the third State that made the relevant request, does not provide for the nationality of the extradite as a cause of impediment, while such a guarantee is provided for in the legislation of the State of nationality of the person requested.
In the present case, it is uncontroversial that Article 4 of the Italy-United States Extradition Treaty of October 13, 1983 stipulates that the extradition of a person cannot be refused merely because that person is a national of the requested Party.
For the sake of completeness, it should be pointed out that the June 25, 2003, extradition agreement between the European Union and the United States (ratified by Italy by Law No. 25 of March 16, 2009), supplementary to the national one, does not contain any exception to surrender based on the extradite's EU citizenship.
Quite different, on the other hand, is the corresponding French regulation, there where Article 696-4 of the Code of Criminal Procedure, in its first paragraph, states that extradition cannot be granted when the requested person has French nationality.
A similar provision is contained in the France-United States Extradition Treaty of April 23, 1996, Article 3 of which provides that the requested state is not obliged to grant the extradition of one of its nationals, and if the extradition request is rejected solely because the requested person is a national of the requested state, the latter, at the request of the requesting state, shall submit the case to its competent authorities for prosecution.
On the basis of this legal framework, it is undeniable that the applicant - had he been reached by the extradition request in his state of nationality - would have enjoyed the aforementioned ground for refusal of surrender.
Conversely, for the mere fact that he was in Italy, similar guarantee, although directly related to the status of French citizen, is not immediately applicable, given that the extradition request must be evaluated on the basis of the different Italian legislation.
The above entails the necessary verification of the compatibility of the discriminatory and limiting consequences of the right to free movement, potentially contrary to the provisions contained in Articles 18 and 21 TFEU.
3. The issue of the different national protection granted to the citizen, in the case of an extradition request to third States, has been extensively examined in the EuroUnion jurisprudence, which, albeit with regard to a different issue from the one under consideration, has constantly reiterated that the presence of the extradite in a Member State, which provides for a different discipline than that of the Member State of nationality, imposes a communicative obligation on the latter.
It should be premised that the case law in question has always examined cases in which the requested state recognizes the prohibition of extradition for its own nationals, without a similar guarantee being extended to nationals of other member states.
In the aforementioned "Petruhhin" judgment, the Court of Justice held that an EU member state, faced with an extradition request from a third state concerning a citizen of another EU member state, is obliged to initiate a consultation procedure with the EU citizen's home state, giving that state the possibility of prosecuting its own citizen by issuing a European arrest warrant.
The Court affirmed that, in the abstract, extradition rules fall within the exclusive competence of the member states, subject to the necessary control of their potential suitability to undermine the exercise of the freedom to move and reside in the territory of the member states, as conferred by Article 21 TFEU. On this point it was stated, in particular, that "the unequal treatment consisting in allowing the extradition of a citizen of the Union who is a national of another Member State, such as Mr. Petruhhin, results in a restriction on freedom of movement, within the meaning of Article 21 TFEU>> (§33).
3.1. The guarantee reserved for the extradite poses the need to balance the protection requirements of the prohibition of discrimination and freedom of movement with the requirements of prosecution of crimes.
The balancing point has been identified in providing for a mechanism of cooperation between the states of the European Union, giving priority to the exchange of information with the member state of which the person concerned is a national, in order to provide the authorities of that state, provided that they are competent under their national law to prosecute that person for acts committed outside the national territory, with the opportunity to issue a European arrest warrant for the purpose of prosecution.
With this in mind, the obligation to communicate the pendency of the extradition request is essentially aimed at enabling the extradite's state of nationality to request his or her surrender, on the basis of the legislation on the European arrest warrant, for the purpose of prosecution for the same offense for which surrender was requested by the third state.
3.2. Subsequent case law has essentially stuck to the same principles, applying them also in the hypothesis of executive extradition and reaffirming in each case that the obligation to communicate the pendency of the proceedings to the Member State of which ! the extradite is a national represents an inescapable form of cooperation, aimed at protecting the freedom of movement of citizens of the Union.
Notably, in the subsequent "Pisciotti" judgment (CJEU, April 10, 2018, C- 191/16), the Court of Justice applied the collaborative tool elaborated in the "Petruhhin" judgment in a situation where there was an extradition agreement in force between the European Union and the third state requesting extradition, stating that a member state is not obliged to extend the prohibition against extraditing its nationals to the United States to all citizens of the Union traveling on its territory.
In this regard, however, the Court has made it clear that before extraditing a citizen of the Union, the Member State to which the extradition request is addressed must place the Member State of nationality in a position to request his or her surrender under a European arrest warrant (in the same vein, see also CJEU, Dec. 17, 2020, Generalstaatsanwaltschaft Berlin, C-398/19; in relation to the different hypothesis of extradition requested for enforcement purposes, see also the recent judgment rendered by CJEU, Dec. 22, 2022, S.M., C-237/21).
4. Drawing conclusions from the examination of the aforementioned European Union jurisprudence, the emergence of a constant principle must be valued, marked by guaranteeing the information of the Member State of which the extradited person is a national about the pendency of the surrender procedure and as long as the extradited person is in the territory of the European Union (Sez. 6, no. 26310 of 26/05/2021, Klug, Rv. 281543).
It should be premised that the enhancement of information obligations has a generalized scope, so much so that the "Petruhhin" judgment does not substantially place any limitation on the obligation to communicate, stating in the operative part that "Articles 18 and 21 TFEU must be interpreted as meaning that, when a Member State to which a citizen of the Union having the nationality of another Member State has gone is presented with a request for extradition by a third State with which the first Member State has concluded an extradition agreement , it is obliged to inform the Member State of which the said citizen is a national and, where appropriate, at the request of the latter Member State, to surrender that citizen to it, in accordance with the provisions of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, as amended by Council Framework Decision 2009/299/JHA of 26 February 2009, provided that said Member State has jurisdiction under its national law to prosecute that person for acts committed outside its territory."
4.1. The principle, interpreted to its fullest extent, must be considered applicable even in the case - such as the one at issue in these proceedings - in which the requested member state does not provide for the exception of nationality in the extradition context, whereas such a guarantee is established by the different national legislation of the member state of which the extradite is a national.
In such a case, indeed, what comes into relevance is not so much the prohibition of discrimination under Article 18 TFEU, given that the foreign national would not be subjected to a deterrent treatment compared to that reserved for the Italian citizen (see Sez. 6, no. 46912 of 30/10/2019, Kokotovic, Rv. 277564), but rather the need to protect the right to free movement within the territory of the European Union.
By omitting the information to the member state of which ! the extradite is a national, what would be affected is essentially the right to free movement on European territory, rather than the prohibition of discrimination.
If it were to be accepted that, as a result of the mere presence of the French national on Italian territory, the latter would be deprived of the prerogatives recognized by the Court of Justice against extradition to a foreign state, which he would instead have enjoyed in the country of his nationality, an indirect impairment of freedom of movement would be determined, insofar as the exercise of this right results in an implicit and necessary renunciation of a right connected with the status of French national.
4.2. The obligation of information and cooperation between the requested State and the Member State of which the extradite is a national also implements, moreover, the principle set forth in Article 3 TEU, which states that "the Union shall offer 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, asylum, immigration and the prevention and combating of crime," as well as in Article 67 TFEU, which states: "the Union shall constitute an area of freedom, security and justice with respect for fundamental rights as well as the different legal systems and traditions of the Member States."
The status of a citizen of the Union requires that, regardless of the Member State in which he or she is at the time of the request, the extraditee may exercise those prerogatives that are proper to his or her condition, not being able to be treated less favourably merely because the Member State called upon to make a decision provides less stringent conditions for surrender to a third state.
It should also be pointed out that the obligation of extradition cooperation assumed by a member state towards a third state (Article 4 of the Italy-USA Treaty) does not expressly derogate from the relevant provisions of the TEU and is therefore recessive with respect to the prevailing Euro-unitary obligations that the member state, by virtue of the TEU and the CDFUE, is required to respect towards another member state in the European Union's area of freedom, security and justice.
5. The need to institute the information procedure in favor of the member state of which the extradite is a national also stems from the need to ensure, on an equal footing with the Italian national, the verification of the possible prosecution in the state of nationality.
According to Article 7 of the Italy-United States Extradition Treaty, in fact, extradition may be refused if the requested person is being prosecuted, for the same facts, by the state that should provide the surrender.
A similar guarantee could not be asserted by the citizen of another member state, given that the Italian authority - if it did not inform the state of citizenship of the extradite - would not be able to know of the possible institution of proceedings for the same facts, which would result in unequal treatment between Italian citizens and citizens of other member states.
In this further respect, therefore, the need to proceed with the information burden dictated by the "Petruhhin" judgment also prevents the risk of discrimination against a citizen of a different member state, which is prohibited by Article 18 TFEU and Article 21(2) of the Charter of Fundamental Rights, as recalled in Article 6 TEU.
For the sake of completeness, it should be emphasized that, in view of an interpretation of the domestic legislation in accordance with the provisions on freedom of movement and prohibition of discrimination set forth in the aforementioned European legislation, as well as in view of the clarity of these provisions, recourse to the instrument of a reference for a preliminary ruling is not necessary.
6. Once the need to apply, even in the present case, the information obligations in favor of the member state of which the extradited person is a national has been ascertained, the further need arises to delimit the content of these obligations and, above all, to identify the outcome of the information phase.
These are issues that have already been adequately resolved in the aforementioned judgment of December 17, 2020, Generalstaatsanwaltschaft Berlin, C- 398/19, in which the Court of Justice further clarified the requirements of the cooperation mechanism outlined in the "Petruhhin" judgment, stating that:
-a citizen of the Union can be extradited to a third state only after consultation with the Member State of his nationality;
-the Member State of nationality must be informed by the requesting Member State of all the factual and legal elements communicated in the extradition request and must be given a reasonable time in which to issue a European arrest warrant against the citizen concerned;
- -in the event that the Member State of nationality does not take a formal decision on the issuance of the European arrest warrant, the requested Member State is not obliged to refuse the extradition of a citizen of the Union who is a national of another Member State and itself prosecute him or her for acts committed in a third State.
These principles, moreover, have already been incorporated in the case law of this Court, it having been affirmed that, in the matter of extradition for foreign countries of a citizen of the European Union, although there exists, for the requested member state, the obligation to inform the member state of nationality so that the latter can claim the surrender of the person concerned with a European arrest warrant on the same facts, nevertheless, where the state of nationality remains inactive the requested state is not obliged to refuse extradition and itself prosecute the EU citizen, if national law authorizes it, in order to avoid unequal treatment with its own nationals, since this would overstep the limits that EU law may impose on the discretionary power of national states in the exercise of criminal prosecution (Sez. 6, No. 24555 of 05/30/2022, Deamandel, Rv. 283604).
The aforementioned rules must be further supplemented by also identifying the time frame within which cooperation between member states is destined to end, given that, in order to avoid surreptitious forms of impunity, information about the extradition request addressed to the member state of which the extradite is a national cannot unreasonably delay the definition of the procedure.
This aspect is also fully addressed by the aforementioned ECJ ruling, where it clarified that it is up to the requested Member State to set a reasonable time limit, after which, if the Member State of nationality has not issued a European Arrest Warrant, it may proceed with extradition, not even having to wait for the Member State of nationality to take a formal decision to waive the right to issue a European Arrest Warrant against the person concerned (CJEU, December 17, 2020, Generalstaatsanwaltschaft Berlin, C-398/19).
7. In light of these considerations, the judgment under appeal must be set aside with reference, the Court of Appeal in the operative part having to proceed to inform the State of nationality of the extraditee (France) about the pendency of the surrender procedure, setting a reasonable time limit to allow for the adoption of any requests for a European arrest warrant and finally proceeding to decide on the extradition request in the event that, at the expiry of the time limit, the requested Member State has not taken any action.
The Chancery will see to the completion of the tasks provided for in Article 203 disp. att. cod. proc. penale.
P.Q.M.
Annuls the appealed judgment with referral for new judgment to another Section of the Court of Appeal of Rome.
Sends to the Clerk's Office for fulfillment of the requirements of Article 203 disp. att. cod. proc. penale.
Thus decided on May 16, 2024 (dep. May 31, 2024).