KKO:2019:12

Diary number: H 2017/31
Issue date: 12 02 2019
ECLI:FI:KKO:2019:12

Question to be decided and the facts of the case

Supreme Court judgment KKO 2019:12 involved the question of whether a citizen of another Member State of the European Union could be extradited to a country outside of the European Union for enforcement of his sentence.

A, a citizen of both Lithuania and the Russian Federation, had been sentenced in the Russian Federation in 2011 to a prison sentence. The Russian Federation had submitted a request to Finland for his extradition for the enforcement of the sentence of imprisonment.

A had opposed the request for extradition.

The Ministry of Justice requested the opinion of the Supreme Court on whether it was possible to consent to the request.

Applicable provisions and rules

According to section 2 of the Extradition Act of Finland, a Finnish citizen may not be extradited to another country.

The European Convention on Extradition of 13 December 1957, to which both Finland and Russia are parties, was applicable in the case.

Article 6 of the Convention provides, among other things, that a Contracting party shall have the right to refuse extradition of its own nationals and that each Contracting party may, by a declaration made at the time of signature, define as far as it is concerned the term of “nationals" within the meaning of this Convention, and that nationality shall be determined as the time of the decision concerning extradition.

In acceding to the Convention, Finland has declared that within the meaning of this Convention the term “nationals" shall denote nationals of Finland, Denmark Iceland, Norway and Sweden, as well as aliens domiciled in these States.

According to Article 18 of the Treaty on the Functioning of the European Union, any discrimination on grounds of nationality shall be prohibited within the scope of application of the Treaties. Under Article 21 of the Treaty, every citizen of the Union shall have the right to move and reside freely within the territory of the Member States.

Request by the Supreme Court for a preliminary ruling

The Supreme Court referred the following questions to the Court of Justice of the European Union for a preliminary ruling:

1. Are national provisions on extradition to be assessed with respect to the freedom of movement of nationals of another Member State in the same way, regardless of whether the extradition request of a third country, on the basis of an extradition convention, concerns the enforcement of a custodial sentence or a prosecution as in the Petruhhin case (Judgment 6 September 2016, C-182/15, EU:C:2016:630)? Is it relevant that the person whose extradition is sought, as well as being a citizen of the Union, is a national of the State which has made the request for extradition?

2. Does a national law under which only its own nationals are not extradited outside the EU for the enforcement of a penalty unjustifiably disadvantage nationals of another Member State? Are the mechanisms of EU law by means of which an objective, acceptable as such, may be achieved in a less prejudicial manner also applicable in an enforcement situation? How is a request for extradition to be answered in a situation in which, in accordance with such mechanisms, the request is notified to another Member State which, however, does not, because of legal obstacles for instance, adopt measures concerning its nationals?

The reply of the Court of Justice

In its judgment of 13 November 2018 (Grand Chamber, C-247/17, EU:C:2018:898), the Court of Justice answered the questions as follows:

Articles 18 and 21 TFEU must be interpreted as meaning that, where an extradition request has been made by a third 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 Member State, whose national law prohibits the extradition of its own nationals out of the European Union 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.

Assessment of the Supreme Court

On the basis of the answer given by the Court of Justice to the questions referred for a preliminary ruling, the Supreme Court held that, in the case of a citizen of the Union who exercised his freedom of movement and whose extradition had been requested outside the Union, he must be treated in the same way as Finnish nationals if he is deemed to reside permanently in Finland. In such a case, section 2 of the Extradition Act prohibiting the extradition of Finnish citizens applies.

The issue of whether a citizen of the Union resides permanently in another Member State had been assessed in the jurisprudence of the Court of Justice in connection with surrender on the basis of a European Arrest Warrant in cases Wolzenburg (6 October 2009, C-123/08, EU:C:2009:616) and Kozlowski (17 July 2008, C-66/08, EU:C:2008:437). It is noted in these judgments that the objective of the optional non-execution of a European Arrest Warrant is in particular to increase the requested person’s chances of reintegrating into society when the sentence imposed on him or her expires, which applies to persons who have demonstrated a clear degree of integration in the society of that member state. The person’s situation must be assessed as a whole, and in principle no single factor, such as the length of time that the person has resided in the Member State concerned, can have a conclusive effect of itself (Wolzenburg, paragraphs 67 and 76). The Supreme Court noted further that Article 16(1) of the Directive on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (2004/38/EC) gives Union citizens who have resided legally for a continuous period of five years in the host Member State the right of permanent residence there.

Similarly, the Supreme Court has taken into consideration, in cases relating to the European Arrest Warrant, how permanently the requested person is residing in Finland, how closely his family relationship is connected to Finland and how he has arranged his livelihood and work in Finland. In addition, the assessment has taken into account whether the conduct of the requested person in Finland has involved reproachable aspects, such as the commission of offences (KKO 2011:8, paragraph 19).

The Supreme Court held, which came up also in the judgment of the Court of Justice in the present case (paragraph 46), that the permanence of the residence of a citizen of the Union in Finland must be assessed in accordance with the principles set out above also in situations covered by the Extradition Act. The Supreme Court further stated that, under Article 6 of the Convention, nationality is determined by the date on which the decision is taken on the request for extradition. Similarly, the permanence of the residence of the requested person must be assessed according to the current situation.

A had stated that he had been living in Finland since 2011 and that since the spring of 2012 the Population Information System had contained an entry indicating that his permanent residence had been in Finland. A had two children born in 2012 and 2014 who were Finnish citizens. Since 2015, A has been the sole parent of his younger child. A had stated that he had learned the Finnish language and in 2017-2018 he had participated in vocational training in Finnish. According to the statement, however, he had not yet become employed. According to the information received by the Supreme Court, A had not been guilty of any offences in Finland.

The Supreme Court, having considered the circumstances referred to above as a whole, and in particular taking into consideration that A, also according to the Population Information System, has resided in Finland for almost seven years, as well as his family ties, concludes that he is permanently resident in Finland and has become integrated into Finnish society. As he therefore, as a citizen of the Union, is to be treated in this case in the same way as a Finnish citizen, the Supreme Court held that in accordance with section 2 of the Extradition Act there was no basis for his extradition. Consequently, there is no need to rule on the other grounds on which A has opposed the request for his extradition.

Opinion of the Supreme Court

In its opinion, the Supreme Court held that the request for the extradition of A may not be granted.