Is the recognition of refugee status by an EU member state binding with respect to an extradition request made against another member state? This is the question submitted by a German court to the Court of Justice of the European Union.
In an order filed on 1.06.2022, the Higher Regional Court of the Land Hamm made a reference to the CJEU [1] asking whether Article 9(2) and (3) of Directive 2013/32/EU [2], in conjunction with Article 21(1) of Directive 2011/95/EU [3], should be interpreted to mean that the final recognition of a person’s refugee status, under the Geneva Refugee Convention, by an EU member state is binding, with regard to the extradition procedure in another member state requested for surrender because of the obligation of conforming interpretation of national legislation established by Union law (Article 288(3) TFEU and Article 4(3) TEU), with the consequence that extradition of such a person to the third country or country of origin is necessarily precluded until the revocation or expiration of refugee status.
The story
A Turkish citizen, an ethnic Kurd, was obtaining refugee status in Italy in 2010 under the 1951 Geneva Convention [4]. The individual had claimed to be a political persecuted by the Turkish authorities for his alleged support of the PKK and had been permanently residing in the Federal Republic of Germany since 2019.
In June 2020, through an Interpol alert, Turkey requested the subject’s arrest with a view to extradition for prosecution of him for the manslaughter allegedly committed against his mother in 2009.
In November 2020 the subject was arrested, and the following November 2021 the German court declared his extradition to Turkey admissible, noting the absence of impediments under the provisions of both German law [5] and the European Convention on Extradition [6]. In particular, the judges pointed out how, from their examination of the documentation, there were no concrete grounds to believe that the extradition request had been submitted for a common offense with the purpose of prosecuting or punishing the person for considerations of political opinion, nor that, in the event of transfer, his condition was likely to be aggravated for reasons of that nature. As for refugee status, the German court argued that this would not imply a general prohibition on extradition, since the extradition procedure and the asylum procedure – both domestic and foreign, as in the case at hand – would constitute separate proceedings, and decisions made by administrative and judicial authorities would not peremptorily affect the extradition procedure, but would only have a “circumstantial” value [7] than the independent examination of the general conditions set by German law and the European Convention on Extradition.
The petitioner appealed to Germany’s Federal Constitutional Court, which annulled the court’s decision on the grounds that it violated the fundamental right enshrined in Article 101 of the Constitution (GrundGesetz), according to which no one may be diverted from the natural judge pre-established by law. For the Court, in fact, the territorial courts failed to submit to the Court of Justice of the European Union the preliminary question of European law relevant to the decision, namely, whether the final recognition of refugee status made by the Italian authorities on May 19, 2010, is binding with regard to the extradition procedure in the Federal Republic of Germany, because of the obligation of conforming interpretation of national legislation established by Union law (Article 288(3) TFEU and Article 4(3) TEU), and therefore necessarily precludes an extradition of the subject to Turkey.
Therefore, since the resolution of this question is necessary for the decision on the admissibility of extradition, the Land Court asked the ECJ for a preliminary ruling, but highlighted its own position on the matter.
The order of the German court
According to the referring judges, in fact, there would be no reason to prevent extradition in the concrete case. However, should the decision of the Italian authorities-which have finally granted refugee status precisely because of political persecution by Turkey-be binding for extradition procedures in other EU member states as well, political persecution should be assumed to be an automatic impediment to extradition (even under German law), as long as that status does not expire or is not revoked.
The court also points out how the same issue is still controversial even within German doctrine and jurisprudence. The Constitutional Court itself, in its annulment decision, noted that there are two conflicting positions on this issue, based mostly on the European discipline that has followed over time. And in fact, under the old Directive 2005/85/EC [8] extradition during an ongoing asylum procedure could only take place within the Union, namely under a European arrest warrant, or to an international criminal court or tribunal. That rule, however, was replaced by Directive 2013/32/EU, under which a person can be extradited to a third country during the asylum procedure only if the competent authorities are satisfied that the extradition decision will not result in direct or indirect “refoulement” in violation of that member state’s international and Union obligations [9].
From this new discipline, according to one part of the doctrine, would derive the prohibition of extradition to a third country of the person who has been definitively granted refugee status, with the consequent obligation to interpret in conformity any conflicting national legislation.
According to other parts of the doctrine, on the other hand, the earlier wording of the Directive would demonstrate the intention of European legislators to keep asylum and extradition procedures separate and autonomous.
The referring court adheres to the latter view, considering the argument that in no rule (neither in the old European rules nor in which currently in force) is a binding effect of one procedure over the other explicitly provided for. Moreover, a significant period of time may elapse between the granting of refugee status and the initiation of extradition proceedings, during which the circumstances relevant to the granting of asylum may change. In that case, “if, as part of the examination of the admissibility of extradition by the requested member state, the final recognition of the refugee status of the accused in another member state of the Union – in the present case: Italy – was binding, but new circumstances arose that would justify a different assessment of the issue of political persecution, a protracted revocation procedure should take place in the other member state of the Union – in the present case: Italy” [10] and such a consequence would not be compatible with the principle of speedy proceedings.
Finally, in the opinion of the German College, extradition of a person to the country of origin should still be allowed, despite the final recognition of refugee status, unless it violates international law and EU law. This would be in line with the objective, considered legitimate by the Court of Justice of the European Union itself, of avoiding impunity for persons who have committed or are suspected of having committed a crime and move freely within the Union. And in fact, where extradition for the purpose of prosecution should not be allowed, without further verification, based solely on the binding nature of the recognition of the right to asylum, the accused would remain virtually unpunished in most cases. Nor would the possibility of instituting criminal proceedings within the member state seem effective, given the difficulties the prosecuting authority would face in finding and taking evidence in a third country.
Italian jurisprudence
A similar position to that expressed by the German judges has also been taken in Italian jurisprudence, where the Court of Cassation has repeatedly reiterated the autonomy of the extradition procedure from the (exquisitely administrative) procedure for the recognition of refugee status, pointing out that the latter prevents surrender only “in the presence of an order of the competent Territorial Commission of the Ministry of the Interior, which has granted the extradited person the “status” of international protection, because of the danger of exposure to inhuman and degrading treatment in the event of return to the extradition requesting state, where the latter order is recognized by the court as complete, certain and reliable” [11].
On the contrary, the mere pendency of the procedure would not explain any binding effect on the request for delivery since Art. 7 of Legislative Decree. January 28, 2008, no. 25 recognizes the authorization of the applicant for an application for international protection to “remain in the territory of the State” until the decision of the Territorial Commission, subject to certain exceptions (such as, for example, those who are to be extradited to another State, pursuant to obligations under a European Arrest Warrant, or have submitted a first application, reiterated for the sole purpose of delaying or preventing the execution of a decision that would result in their imminent removal from the national territory, or have expressed a willingness to submit another application, reiterated following a final decision that considers inadmissible or has rejected a first application); the quoted rule, therefore, would not prohibit the granting of extradition, but would only require national authorities not to make the surrender as long as the request is pending. Therefore, also according to the Italian court, the mere pendency of the proceedings aimed at examining the application for international protection would not determine “any form of bias with respect to the extraditional one, since the suspension of the surrender or the possible subsequent recognition of international protection will be evaluated within the scope of the powers delegated to the Minister of Justice under Article 708 of the Code of Criminal Procedure.” [12]
The Court of Justice is called upon to strike a delicate balance between the need, on the one hand, to protect the rights of refugees and, on the other, to avoid impunity for perpetrators of serious crimes, while ensuring the uniform interpretation and application of EU law. However, the arguments put forward by the national courts do not seem to be diriment for a solution in the negative sense, either because they pertain to outdated normative disciplines (such as those still referred to by the German court in support of its decision), or because they do not seem to fully consider the complex legal scenario of the requesting third countries, which do not always guarantee the same principles of autonomy and impartiality of the judiciary nor the concrete respect for the fundamental rights of the individual.
Prof. Avv. Roberto De Vita
Avv. Valentina Guerrisi
References
[1] Reference for a preliminary ruling dated 19.05.2022, filed 01.06.2022, Case C-352/22.
[2] Directive 2013/32/EU of the European Parliament and of the Council of June 26, 2013 on common procedures for granting and withdrawing international protection status (recast).
[3] Directive 2011/95/EU of the European Parliament and of the Council of 13.12.2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (recast).
[4] Geneva Convention Relating to the Status of Refugees of July 28, 1951.
[5] Article 6(2) of the Gesetz über die Internationale Rechtshilfe in Strafsachen (International Legal Assistance in Criminal Matters Act – IRG).
[6] Article 3(1) and (2) of the European Convention on Extradition signed in Paris on December 13, 1957.
[7] As also resulting from Article 6(2) of the Asylgesetz (Asylum Act, the “AsylG”).
[8] Art. 7 of Council Directive 2005/85/EC of December 1 or December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status.
[9] Cf. Article 9(3) of Directive 2013/32/EU.
[10] Cf. Reference for a preliminary ruling dated 19.05.2022 – C ausa C-352/22.
[11] Cf. Cassation Sect. VI, April 6, 2020 no. 11374. Accordant Cass. Section VI, 18.12.2013 no. 3746.
[12] Cf. Cassaz. Cit. Conforma Cass. Section VI, 12.06.2019 No. 29910.
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