Agreement with the United States on extradition

KEY POINTS

The agreement supplements the bilateral extradition treaties between EU countries and the US and enhances cooperation in the context of applicable extradition relations.

Extraditable offences

Extraditable offences consist of:

• offences that are punishable by deprivation of liberty for a maximum period (more than 1 year) or by a more severe penalty under the laws of both the requesting and requested country;
• an attempt to commit or participation in the commission of such an offence.

If the requested country grants extradition for an extraditable offence, it must also grant extradition for any other offence included in the request, provided that the other offence is punishable by deprivation of liberty for up to one year and that all the other requirements for extradition are fulfilled.

Extradition requests

• The requesting country transmits its requests for extradition and any supporting documents via the diplomatic channel. These documents need not be authenticated further if they bear the certificate or seal of the requesting country’s Ministry of Justice or Ministry or Department responsible for foreign affairs.
• The requesting country may transmit requests for provisional arrest via the Ministries of Justice, instead of using the diplomatic channel. These requests may also be transmitted via the International Criminal Police Organization (Interpol). When the requesting country seeking the extradition of a person who already is under provisional arrest in the requested country, it may submit its request directly to the requested country’s embassy located on its territory.
• If the requested country deems the information provided in the request for extradition is insufficient for carrying it out, it may require the requesting country to submit additional information. Requests for and transmissions of additional information may be done directly between the Ministries of Justice.

Extradition procedures

• The requested country may temporarily surrender a person who is being proceeded against or who is serving a sentence to the requesting country for prosecution.
• When several countries request the extradition of the same person for the same or different offences, the requested country’s executive authority decides to which country that person will be surrendered. Similarly, if the US submits an extradition request for a person whose surrender has also been requested pursuant to the European arrest warrant (EAW) for the same or different offences, the requested EU country’s competent authority decides to which country the person will be surrendered.
• However, when the extradition request from the US is addressed to an EU country which has rules in place granting its own nationals protection against extradition and the request concerns a national of another EU country, the executing judicial authority must inform the EU country of which the citizen in question is a national, and, where applicable, surrender the person to that country pursuant to its EAW, in accordance with the judgment of the Court of Justice in Case C-182/15 Petruhhin.
• Article 18 TFEU and Article 21 TFEU must be interpreted as meaning that, when an EU country to which an EU citizen, a national of another EU country, has moved receives an extradition request from a non-EU country with which the first EU country has concluded an extradition agreement, it must inform the EU country of which the citizen in question is a national and, should that country so request, surrender that citizen to it, in accordance with Council Framework Decision 2002/584/JHA provided that that EU country has jurisdiction, pursuant to its national law, to prosecute that person for offences committed outside its national territory.
• Where an EU country receives a request from a non-EU country seeking the extradition of a national of another EU country, that first EU country must verify that the extradition will not prejudice the rights referred to in Article 19 of the Charter of Fundamental Rights of the European Union. Consequently, the Court of Justice clarified in its judgment in Case C-191/16 Pisciotti: ‘In a case in which an EU citizen who has been the subject of a request for extradition to the US under the agreement on extradition between the EU and the US has been arrested in an EU country other than the country of which he is a national, for the purposes of potentially acceding to that request, Articles 18 and 21 TFEU must be interpreted as not precluding the requested EU country from drawing a distinction, on the basis of a rule of constitutional law, between its nationals and the nationals of other EU countries and from granting that extradition whilst not permitting extradition of its own nationals, provided that the requested EU country has already put the competent authorities of the EU country of which the citizen is a national in a position to seek the surrender of that citizen pursuant to a EAW and the latter EU country has not taken any action in that regard.’
• Moreover, the Court of Justice held in its judgment in Case C-247/17 Raugevicius: ‘Articles 18 and 21 TFEU must be interpreted as meaning that, where an extradition request has been made by a non-EU 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 EU country, 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.’
• The requested country may use simplified extradition procedures, that is surrender a person without delay and further proceedings, when the person concerned consents to being surrendered.
• EU countries and the US may allow for the transit through their territories of a person surrendered to or by one or the other and a third country. Requests for transit may be made via the diplomatic channel, directly between the US Department of Justice and the EU country’s Ministry of Justice or via Interpol. No authorisation is needed for air transportation, provided that no landing is scheduled onto the territory of the transit country. In the case of an unscheduled landing, the country in question may require a request for transit.
• The requested country may grant extradition for an offence that is punishable by death under the laws of the requesting country but not under its own laws on condition that:
  • the death penalty will not be imposed;
  • if the death penalty is imposed, it will not be carried out.
• Decision 2009/933/CFSP extends the territorial scope of the agreement on extradition between the EU and the US to the Netherlands Antilles and Aruba.