Edward Grange (London, UK)
Introduction
The bold decision of the Frankfurt am Main Higher Regional Court pronounced in May 2020 may be of greater interest and significance to EU27 Member states than it may be to audiences in the UK. This is not because of the many consequences of BREXIT, but rather the way the UK interprets the law on non bis in idem as it applies in an extradition context together with the specific inclusion in the UK/US Extradition Treaty for extradition to be refused where the requested person has already been acquitted or convicted by a third state for the conduct alleged in an extradition request.
The decision of the German Court was ‘bold’ not just because it refused an extradition request from the United States of America. The US/German extradition arrangement, when it came to double jeopardy, only prevented extradition if the conduct set out in the extradition request had been the subject of a final acquittal or sentence in the requested state; it made no allowance for a final acquittal or sentence in a third state to be taken into consideration. In the instant case, this would have required the requested person to have been finally sentenced by a German court which was not the case – they had been convicted and sentenced by an Italian court. In order to circumvent this restriction, the German court relied upon established European law principles and in particular two decisions of the CJEU: Petruhhin (C-182/15) and Piscotti (C-191/16).
In relation to the latter, the German Court re-iterated the principle laid down by the CJEU as it applied to the instant case:
“If an EU citizen – against whom a request for extradition to the USA is made – exercises his or her right to freedom of movement and is therefore arrested in another EU Member State for the possible execution of the request, the situation of this citizen falls within the scope of EU law. It would lead to inadmissible unequal treatment if an EU citizen could not be extradited in his or her home country pursuant to Art. 7 D-USA AusIVertrG (extradition treaty Germany/USA) if he or she were arrested there, but could be extradited if arrested in another EU Member State. In this case the requested State was consequently obliged to contact the home EU Member State of the person in order to enable the possibility to prosecute the offender prior to extradition”.
Applying that principle, so said the German Court, was the only way to ensure that an EU national was able to move freely within the EU and have the same protections against extradition requests from outside of the EU as they would have in their own EU state.
The position in the UK
Unlike the extradition arrangement between the US and Germany, the extradition Treaty between the UK and the US makes specific provision for the refusal of extradition where the requested person has been acquitted or prosecuted in a third state for the conduct alleged in the extradition request[1].
Double jeopardy is a specific ‘bar’ to extradition contained within the Extradition Act 2003.
In relation to Part 2 requests for extradition (requests emanating from outside of the EU), Section 80 of the Extradition Act 2003 states:
“A person’s extradition to a category 2 territory is barred by reason of the rule against double jeopardy if (and only if) it appears that he would be entitled to be discharged under any rule of law relating to previous acquittal or conviction if he were charged with the extradition offence in the part of the United Kingdom where the judge exercises his jurisdiction.”
The rules relating to the application of double jeopardy as established in domestic cases in England & Wales, apply equally to cases under the 2003 Act[2]. The High Court of England & Wales held[3] that in the extradition context there are two circumstances in English law which offend the rule against double jeopardy:
- Following an acquittal/conviction for an offence which is the same in fact and law (strict autrefois acquit/convict);
- Following a trial for any offence which was based on the same or substantially the same facts where the court would normally consider it appropriate to stay the prosecution as an abuse of process (a wider abuse jurisdiction).
Double jeopardy in the Extradition Act 2003 embraces both limbs of the rule in English law, namely the narrow autrefois plea and the broader conduct based meaning of the term. This was summarised by the High Court of England & Wales[4]:
“the person’s extradition will be barred if he can establish that it will be an abuse of process of the court to subject him to a prosecution for the offence for which his surrender is sought under the EAW because that prosecution, albeit for a different offence, is founded on the same, or substantially the same facts as the previous charge at the trial which had led to a conviction or acquittal”.
Applying the facts considered by the Higher Regional Court (had the extradition request been to the UK), the UK courts would have discharged the request and refused extradition under section 80 of the Extradition Act 2003 without having to have regard to European law as quoted above. The UK court would have transposed the alleged conduct to the UK and asked whether the requested person, by reason of their earlier conviction and sentence in Italy, would be entitled to be discharged if facing proceedings in the UK. The inevitably answer would have been ‘yes’.
Nationality bar
One further comment on the decision of the Frankfurt am Main Higher Regional Court’s decision is its reference to the nationality bar. The requested person, as an Italian national, would not have been extradited to the USA had they been apprehended in Italy. This is due to the prohibition on extradition of own nationals. The same would have applied to a German national had the requested person been German. In order to have given effect to this, the German Court applied the principles set forth by the CJEU in Petruhhin and Piscotti that it would have been obliged to contact the home EU Member State (Italy) of the requested person in order to enable the possibility to prosecute the offender prior to extradition taking effect.
In the UK, there is no nationality bar. The UK/US extradition treaty specifically states that extradition shall not be refused based on the nationality of the person sought[5]. The UK routinely extradites its own nationals. Further, the UK court has yet to give effect to the principles in Petruhhin and Piscotti and may have limited time in which to do so with the UK finally set to leave the EU on 31 December 2020.
[1] Article 5(2) of the Extradition Treaty between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the United States of America – June 2007
[2] Tolulope John v. Government of the USA [2006] EWHC 3512 (Admin)
[3] Fofana and Belise v. Deputy Prosecutor Thubin, Tribunal de Grande Instance de Meaux, France [2006] EWHC 744 (Admin)
[4] Ninedeys v District Prosecutor’s Office of Varna, Bulgaria [2014] EWHC 4416 (Admin)
[5] Article 3 of the Extradition Treaty between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the United States of America – June 2007