Opinion of Advocate General Tanchev delivered on 27 February 2020.

• Jurisdiction: European Union
• Date: 27 February 2020
• Court: Court of Justice (European Union)

Provisional text

OPINION OF ADVOCATE GENERAL

TANCHEV

delivered on 27 February 2020(1)

Case C‑897/19 PPU

I.N.,

in the presence of:

The Russian Federation

(Reference for a preliminary ruling from the Vrhovni sud (Supreme Court, Croatia))

(EEA Agreement and freedom to receive services –– Mutual Trust and the Common European Asylum System –– Dublin III Regulation and Schengen Associated States –– Extradition request by a third state to an EU Member State with respect to an EFTA national –– Grant of asylum before acquisition of nationality by that EFTA state to EEA national subject to extradition request due to risk of exposure to inhuman and degrading treatment and unfair criminal proceedings in the event of refoulement to requesting third state –– Arrest and detention by an EU Member State with a view to extradition of the EEA national for prosecution for the same crimes considered in asylum proceedings in the EFTA state –– Discrimination on the basis of nationality with respect to extradition –– International Agreement between Iceland, Norway and the EU on surrender procedures and judicial cooperation in criminal matters –– Whether requested Member State obliged to inform the EEA state of the third state extradition request –– Whether EU Member State required to return EEA national to their home state rather than comply with third state extradition request –– Petruhhin ruling of the Court –– Risk of impunity –– Articles 4, 19 and 47 of the Charter of Fundamental Rights)

1. I.N. is a national of the Russian Federation (‘Russia’), and became a national of the Republic of Iceland (‘Iceland’) on 19 June 2019, after having been granted asylum as a refugee in that country on 8 June 2015. On 30 June 2019 he was arrested by Croatian authorities while on holiday, crossing by bus with his family the frontier between that Member State and Slovenia, and remains incarcerated. The arrest took place under an international wanted persons notice issued on 20 May 2015 by Interpol’s Bureau in Moscow.

2. Russia seeks I.N.’s extradition from Croatia on corruption charges and is supported by the Public Prosecutor of Croatia, representing Russia (the ‘Public Prosecutor’). The Croatian constitution precludes extradition of its own nationals, but not non-nationals like I.N., when, as is the case with Russia, there is no extradition treaty. It is argued by the Public Prosecutor that, in the circumstances of the main proceedings, this situation is not precluded by EU law.

3. Iceland requests safe passage of I.N. to Iceland, in a context in which the proceedings for which his prosecution is sought in Russia appear to have formed the basis of the grant of asylum prior to I.N.’s acquisition of Icelandic nationality.

4. In support of the safe passage request, I.N. and Iceland seek to rely on European Union law, but predominantly EEA law. (2) At the same time, Iceland relies on Articles 18 and 21 TFEU, which were held by the Court in Petruhhin, (3) to preclude discrimination on the basis of nationality with respect to extradition of EU citizens who have exercised free movement rights to third states, but subject to caveats that are important and relevant to the main proceedings.

5. This is the essence of the request for preliminary ruling from the Vrhovni sud, Hrvatska (Supreme Court, Croatia, ‘the referring court’). It presents the Court with an opportunity to rule on the intersections between EEA and EU law, and the consequences following from the participation of third states like Iceland in the Schengen acquis as Schengen Associated States, (4) and in particular Iceland’s association with Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (5) (‘Dublin III Regulation’). The participation of both Iceland (6) and Croatia in the Dublin Regulation is of particular relevance to the main proceedings, as is the Common European Asylum System (7) more broadly.

6. In addition to this, consideration is required of the Agreement between the European Union and the Republic of Iceland and the Kingdom of Norway on the surrender procedure between the Member States of the European Union and Iceland and Norway (8) (‘Surrender Procedure Agreement’), and in the background lie a range of Council of Europe instruments affecting extradition, (9) and the Geneva Convention Relating to the Status of Refugees. (10) Due consideration must also be afforded to the preclusion under EU law of extradition to conditions of inhuman and degrading treatment or punishment, which applies with respect to both extradition to third states (11) and internally across the EU in the context of the European Arrest Warrant (12) (as reflected, respectively in Articles 19 and 4 of the Charter), and extradition in the presence of alleged systemic deficiencies in the receiving judicial system, thereby imperilling fair trial (Article 47 of the Charter). (13)

7. In answer to the first question referred, I have reached the conclusion that the Croatian authorities are bound, under principles elaborated in Petruhhin, to inform the Icelandic authorities of Russia’s extradition request with respect to I.N., and continue to be bound to forward to Iceland any material in their possession that might assist the authorities in Iceland to decide whether to prosecute I.N. in Iceland and seek his return.

8. Further, due to the obligation of mutual trust in the quality and lawfulness of the laws of participating states which underpins the Common European Asylum System, and particularly the Dublin III Regulation, the Croatian authorities, including the courts, are precluded from acting inconsistently with a decision granting asylum of a Schengen Associated State, like Iceland, to the Common European Asylum System. Such inconsistency would arise if Croatia (i) refrained from communicating to Iceland an extradition request concerning the same or similar criminal charges pursuant to which Iceland afforded I.N. asylum, since Iceland made a determination that it was the Member State responsible under the Dublin III Regulation; (14) (ii) any of its authorities, including the courts, decided on I.N.’s. risk of exposure to inhuman or degrading treatment or a flagrant denial of justice in Russia, as at the date of the Croatian proceedings, inconsistently with Iceland’s prior grant of asylum to I.N. in 2015.

9. In answering the second question, given that Iceland is yet to make an extradition request, at present there is no obligation on Croatia to actively surrender I.N. to Iceland under the Surrender Procedure Agreement. (15) It will be for the Croatian courts to determine whether, in all the circumstances, any arrest warrant ultimately issued by Iceland, in combination with the Surrender Procedure Agreement, offers protection against impunity equivalent to extradition, without freeing those court’s from their obligation to act consistently with Iceland’s grant of asylum in 2015.

I. Legal Framework

A. European Union Law

10. Article 18 of the TFEU, first paragraph, states:

‘Within the scope of application of the Treaties, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited.’

11. Article 2(1) of the Convention implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders, (16) states:

‘Internal borders may be crossed at any point without any checks on persons being carried out.’

12. Article 2 of Protocol (No 19) on the Schengen acquis integrated into the framework of the European Union (17) states:

‘The Schengen acquis shall apply to the Member States referred to in Article 1, without prejudice to Article 3 of the Act of Accession of 16 April 2003 or to Article 4 of the Act of Accession of 25 April 2005. The Council will substitute itself for the Executive Committee established by the Schengen agreements.’

13. The first paragraph of Article 6 of Protocol (No 19) on the Schengen acquis integrated into the framework of the European Union (18) states:

‘The Republic of Iceland and the Kingdom of Norway shall be associated with the implementation of the Schengen acquis and its further development. Appropriate procedures shall be agreed to that effect in an Agreement to be concluded with those States by the Council, acting by the unanimity of its Members mentioned in Article 1. Such Agreement shall include provisions on the contribution of Iceland and Norway to any financial consequences resulting from the implementation of this Protocol.’

14. Article 1 of the Schengen Association Agreement (19) states:

‘The Republic of Iceland and the Kingdom of Norway hereinafter referred to as “Iceland” and “Norway” respectively shall be associated with the activities of the European Community and the European Union in the fields covered by the provisions referred to in Annexes A and B to this Agreement and their further development.

This Agreement creates reciprocal rights and obligations in accordance with the procedures set out herein.’

15. Article 4(1) and (2), first sentence of the Act of Accession of the Republic of Croatia (20) state:

‘1. The provisions of the Schengen acquis as referred to in the Protocol on the Schengen acquis integrated into the framework of the European Union (hereinafter referred to as the ‘Schengen Protocol’), annexed to the TEU and the TFEU, and the acts building upon it or otherwise related to it, listed in Annex II, as well as any further such acts adopted before the date of accession, shall be binding on, and applicable in, Croatia from the date of...